Effective May 8, the mandatory New Hampshire Universal Guidelines for all businesses was replaced with Universal Best Practices. The Best Practices are recommendations (not requirements) for all New Hampshire individuals, businesses, and organizations to implement in their operations and activities.
While New Hampshire employers will have more discretion going forward in managing their workplaces during the pandemic, employers should keep in mind they still have a legal obligation to provide a safe workplace. It is possible that failing to keep COVID protective measures in place could be considered by OSHA as evidence of failure to provide a safe workplace. It is also possible that failing to follow the Best Practices could be used as evidence of negligence in the event of a lawsuit. In other words, even though the Best Practices are not mandatory, there could be legal consequences of failing to follow them, in addition to the consequence of continued spread of the virus.
When you read the Best Practices (which we urge you to do!) you will see the focus is on using many layers of protective measures. Highlights of the Best Practices include:
- Daily employee screening process: The Best Practices note that “identifying and excluding people with symptoms of COVID-19 or risk factors for exposure” is still “important and recommended,” even though it’s no longer mandated. The Best Practices recommend continued use of the screening questions contained in the NH DPHS Employer Travel, Screening, and Exclusion Guidance which, as of today, is still the version dated March 16, 2021 (“DPHS Guidance”). Neither the Best Practices nor the DPHS Guidance indicate that employers must take employees’ temperatures each day, but the Best Practices state that, “active screening or daily self-attestation of staff and volunteers each day before work for fever, symptoms of COVID-19, or risk factors for exposure” should be considered, “especially for those who provide services requiring close prolonged contact between staff and customers . . . .”
- Testing for COVID-19 and Contact Tracing: The Best Practices highlight testing as an important measure to stop COVID-19 from spreading. The Best Practices provide that people with new or unexplained symptoms related to COVID-19 should be instructed to stay home and get tested for the virus. In addition, COVID-19 exposures at businesses and organizations should still be reported to NH Department of Health & Human Services at 603-271-4496. In fact, the reporting of infectious diseases and furnishing infectious disease-related business information is required by New Hampshire law.
- Face Masks: The Best Practices emphasize the importance of face masks. The CDC also continues to recommend the use of face masks in public settings, at events, and anywhere people will be around other people. See CDC Guide to Masks. The Best Practices provide that employees and customers should still be encouraged to use face masks when they will be within 6 feet of each other for 10 minutes or longer. Alternatives to face masks can be considered such as installing ridged plastic barriers between people who are separated by less than 6 feet. The Best Practices also make it clear that businesses, organizations, and event organizers are still free to require employees, visitors, and customers to wear face masks as long as exceptions are made for children under the age of 2 and people who have valid medical or developmental challenges that prevent them from wearing a face mask.
- Vaccinated Employees: The Best Practices note that “Vaccination is one of the most important things that your staff, visitors, and customers can do to protect your business, organization, and the surrounding community.” The Best Practices recommend that businesses and organizations encourage vaccination by providing time off, or offering other incentives, for employees to get vaccinated. Employers should be sure to follow EEOC Guidance on Vaccinations under the ADA and other Discrimination Laws when considering whether or not to require or encourage employees to be vaccinated. Fully vaccinated employees who do not have COVID-19 symptoms can be exempt from certain quarantine requirements after an exposure (See DPHS Guidance). However, the Best Practices state that vaccinated individuals should still follow other protective measures, such as social distancing and face mask use. Note that the CDC also still recommends that fully vaccinated people wear masks indoors in many situations. See CDC Guidance for Fully Vaccinated.
There are many more recommendations in the Best Practices, many of which were contained in the Universal Guidelines. Examples include social/physical distancing, cohorting and limited group sizes, modifying layouts, hand hygiene, improved ventilation, and cleaning/disinfecting. Unlike the Universal Guidelines, however, the Best Practices do not recommend cleaning high-touch surfaces every two hours. Rather, they reference the CDC’s recommendation of cleaning high touch surfaces once per day, so long as no one with confirmed or suspected COVID-19 has been in the space. More frequent cleaning/disinfecting is still recommended if there has been high community transmission of COVID-19, low mask compliance or poor hand hygiene, or if the space is used by people at increased risk for severe illness from COVID-19.
We understand that people are eager to be free of the restrictions and protocols for preventing the spread of COVID-19. While the vaccine is helping, there is still significant community transmission of the virus in NH, even in some cases by vaccinated individuals. The protocols and recommendations contained in the Universal Best Practices are designed to help catch cases sooner rather than later (or at least show that the employer/business is using reasonable measures to catch cases sooner rather than later) to slow the community spread.
As has been the case since the beginning of the pandemic, the situation is always changing. We hope this information is helpful to you now, and know that we will continue to monitor these issues carefully. Please feel free to contact either of us with any questions.
Jennifer Shea Moeckel, Esq. Andrea G. Chatfield, Esq.
Direct: 603.621.7112 Direct: 603.621.7118