Kramer, Elkins & Watt

Forward Dane: Dane County’s Phased Reopening Plan

Forward Dane: Dane County’s Phased Reopening Plan

On May 18, 2020, Public Health Madison Dane County (hereinafter referred to as “PHMDC”) issued Emergency Order #2 (the “Order”)..  The Order adopts the vast majority of the previous “Safer at Home” order which was issued by the Wisconsin Department of Public Health.

There are several differences in this latest Order, most significantly, it does not have a set-in-stone expiration date. Instead, the Order will terminate based on achievement of specific metrics, and it will be replaced by phases with loosened restrictions, as explained in more detail below.  In addition to being open-ended, the Order contains the following differences from what we were already used to with Safer at Home:

  • For all business activities permitted under the Order, when physical distancing of 6 feet cannot be maintained, businesses must ensure that employees are provided with appropriate face coverings or protective shields (for example, a transparent partition)
  • Skate parks have been added to the places of public amusement and activity that shall be closed
  • Golf courses may rent out golf carts
  • Disc golf ranges may open, with certain limitations
  • Tennis courts may be open, with certain limitations
  • Salons, spas, and similar businesses may open only to sell goods to customers but they may not provide services
  • Garage, rummage, and yard sales are not permitted
  • Residential cleaning is permitted as an essential “critical trade”, but only for those that are disabled
  • Short-term lodging, such as Airbnb and VRBO, may operate, with the same restrictions as hotels and motels
  • Auctions are allowed under certain circumstances and with certain restrictions
  • Aesthetic or optional exterior resident construction and lawn care are no longer required to limit the number of employees on a job site (the previous limit was one employee per job site) but employees must practice physical distancing

What has not changed from Safer at Home?  In short, everything else.  Notably:

  • While the term “physical distancing” is swapped in for “social distancing,” it means the same – at least 6 feet between each person
  • The capacity and priority limitations that apply to childcare facilities
  • The “turns of the dial” that were allowed under the most recent state-wide orders (#34 and #36), which allowed, among other things, in-person retail shops to be open with a maximum of 5 customers in the shop at a time, curbside drop off, and outdoor recreational rentals, have been incorporated into this Order.

The Forward Dane plan and its metrics and requirements are quite detailed, and we provide only a summary here.  It is important that any business in Dane County that is already operating or plans to operate soon review the plan carefully and seek appropriate professional advice where appropriate.

Requirements for All Phases and Businesses

Before we discuss what each phase entails for Dane County businesses and the metrics used to determine moving between the phases, Forward Dane contains some important requirements for all businesses and all phases, some of which we hadn’t seen with the state’s plan.  Before moving into Phase One, all businesses in Dane County must have the policies and procedures on the below items both in writing and implemented/ready to implement:

  • Hygiene, including not allowing employees with a fever to come to work, handwashing expectations, and a description of proper cough and sneeze etiquette
  • Cleaning, including surface disinfecting practices, cleaning common areas between use or shifts, and disinfecting in the event of a positive COVID-19 case at your business
  • Protective Measures, including ensuring 6 feet of distance between people whenever possible and that employees wear face coverings when distancing is not possible

Employers must also document that the written policies and procedures were provided to employees or that they were trained on them. Given that businesses could begin reopening as early as May 26 (more on that below) it is imperative that your business get its policies and procedures in writing soon.

Forward Dane’s Phases

Prepare for Safe Reopening Phase

This is the phase we are currently in, effective May 19.  During this phase, and until Phase One begins, businesses, both essential and non-essential, may engage in certain activities geared toward preparing for reopening. What this looks like will vary by type of business but generally businesses may perform the minimum operations necessary to prepare to reopen, including cleaning, stocking supplies, and getting the facility ready for clients or customers.  This includes non-essential businesses. These business can now have more than one employee work in the facility for the sole purpose of preparation to reopen. However, they can have only the minimum number of employees in the facility at one time that are necessary for these purposes and all employees should practice physical distancing and other safety precautions.

When each phase will begin and end is explained in the “metrics” section, below.

Phase One

Forward Dane provides a chart which spells out, by industry, what each type of business is allowed to do in each phase.  The list is long and we do not repeat it in its entirety; anyone interested is encouraged to review the Forward Dane plan carefully.  Some areas of note include the following:

  • K-12 schools will remain closed
  • Childcare settings must limit group sizes to 15 children
  • Restaurants, bars, and stores that offer dine-in services may open at 25% of their indoor seating capacity, may allow outdoor seating, must space tables at least 6 feet apart, must limit each table to 6 guests, must maintain at least 6 feet between each “household “ of guests in bar areas, and may not permit self-service or self-dispensing of food or drink
  • Retail establishments may operate at 25% of capacity and may not offer sampling of goods (including, for example, food and makeup); shopping malls may also open at 25% capacity.
  • Gyms and recreational facilities may open at 25% capacity, but the following areas must remain closed: basketball courts, other areas where contact sports occur, saunas, and steam rooms
  • Salons, tattoo parlors, and spas may open for services by appointment only, not allow customers to remain in waiting area, require employees to wear face coverings or masks at all times, and require customers to wear face coverings to the extent possible
  • Residential cleaning services may resume with no restrictions*
  • Interior aesthetic or optional residential construction may resume with no restrictions
  • Low-contact recreational activities may resume with no restrictions (e.g., dog parks)
  • Licensed swimming pools may open at 25% capacity
  • Outdoor entertainment may open and allow a maximum of 25 people (not including employees) to attend at one time
  • Bowling alleys may open at 25% capacity and cannot offer rentals/borrowed equipment of any kind
  • Mass gatherings in public venues and private property:
    • Indoor: 10 people maximum (not including employees)
    • Outdoor: 25 people maximum (not including employees)

*No restrictions means no specific restrictions for that industry; all businesses are subject to certain restrictions and physical distancing, as outline below.

Phase Two

  • K-12 schools will be permitted to open**
  • Childcare settings will remain limited to group sizes of 15 children
  • Restaurants, bars, and stores that offer dine-in services may open at 50% of their indoor seating capacity, may allow outdoor seating, may not permit self-service or self-dispensing of food or drink, and will be subject to yet-to-be-defined spacing requirements
  • Retail establishments may operate at 50% of capacity and may not offer sampling of goods; shopping malls may also open at 50% capacity.
  • Gyms and recreational facilities may open at 50% capacity, but the following areas must remain closed: basketball courts, other areas where contact sports occur, saunas, and steam rooms
  • Salons, tattoo parlors, and spas – no change from Phase One
  • High-risk recreational activities, such as contact or team sports: this is one area where PHDMC has indicated “to be determined”
  • Outdoor playgrounds and splash pads may open with no restrictions
  • Indoor playground, funplexes, trampoline parks, miniature golf, and skating rinks may open at 50% capacity.
  • Restrictions currently in place for golf courses will be lifted.
  • Licensed swimming pools may operate at 50% capacity
  • Outdoor entertainment may open and allow a maximum of 100 people (not including employees) to attend at one time
  • Bowling alleys may operate at 50% capacity and may offer rentals/borrowed equipment
  • Mass gatherings in public venues and private property:
    • Indoor: 50 people maximum (not including employees)
    • Outdoor: 100 people maximum (not including employees)

**What schools do will be subject to further direction from the Wisconsin Department of Public Instruction

Phase Three

  • Childcare setting group size restrictions will be lifted
  • Restaurants, bars, and stores that offer dine-in services may open with no limitation on indoor seating capacity, may allow outdoor seating, may not permit self-service or self-dispensing of food or drink, and will be subject to yet-to-be-defined spacing requirements
  • Retail establishments may operate at 75% of capacity and may not offer sampling of goods; shopping malls may also open at 75% capacity.
  • Gyms and recreational facilities may open at 75% capacity with no further restrictions
  • Salons, tattoo parlors, and spas may operate fully but must require face coverings/masks, as outlined in Phase One
  • Indoor playground, funplexes, trampoline parks, miniature golf, and skating rinks may operate at 75% capacity.
  • Licensed swimming pools may operate at 75% capacity
  • Outdoor entertainment may open and allow a maximum of 250 people (not including employees) to attend at one time
  • Bowling alleys may operate at 75% capacity and may offer rentals/borrowed equipment
  • Mass gatherings in public venues and private property:
    • Indoor: 100 people maximum (not including employees)
    • Outdoor: 250 people maximum (not including employees)

A number of other businesses not listed above are subject to the same 25%-50%-75% limitations in each of the three phases, respectively.

Metrics & Moving Through the Phases

When will we move from one phase to the next?  There is no date certain ; it depends on meeting certain metrics.  PHMDC has laid out 9 separate metrics it will use to measure progress. These metrics include categories for measuring the percent of positive tests and new COVID cases, increased testing of the community and robust testing of healthcare workers, stable/decreasing COVID cases among healthcare workers, increasing lab reporting of tests, and tracking community spread and COVID-like symptoms. Each of the tracking metrics are averaged over the previous 14-day period. For each metric, benchmarks are coded as Green, Yellow, or Red.  Those color “scores” determine whether the next Phase can be implemented. To track PHMDC metrics please visit its metrics website here.

PHMDC says that Dane County will not move to Phase One any sooner than Tuesday, May 26. To move into Phase One, all 9 metrics must be either green or yellow. As of May 18, all metrics are green or yellow. Thus, if things remain stable or improve over the next week, it is expected we will move into Phase One on May 26.

A move to Phase Two will be assessed no sooner than 14 days after implementation of Phase One. To proceed to Phase Two, more than half of the nine metrics must be green and the percent of positive tests and new COVID cases per day cannot be red.

Finally, the move to Phase Three will be assessed no sooner than 14 days after the implementation of Phase Two. Again, more than half of the metrics must be green and none of the metrics in Dane County or the Southern Region can be red. The Southern Region is not defined by the PMDHC but it says that it will provide metrics for the region when it becomes relevant. Phase Three will be continued until a vaccine is made available.

The Forward Dane plan acknowledges that there may be outbreaks of COVID-19 that may require tightening policies that have been loosened (in other words, moving into a previous phase for a period of time until numbers improve).  However, the stated goal is for the path to full reopening to be linear.

What’s Next?

Again, as of May 18, 2020, the metrics appear to meet the criteria to move into Phase One. If the numbers involved in the various metrics hold steady and do not move out of yellow or green between now and May 26, Phase One will begin.  If the numbers change to move any of the metrics out of yellow or green, the beginning Phase One will be delayed.

This new order takes effect today, May 19, and supersedes any previous order. From now until Phase One is authorized by PHMDC, we are in the Prepare for Safe Reopen Phase.

If you have questions about the rights and obligations of your business under the Dane County’s Order or Forward Dane, contact Kramer, Elkins & Watt, LLC. Stay tuned to KEW Tips for updates as they occur. In the meantime, stay safe!