States reopening despite federal guidelines

Despite warnings from the Centers for Disease Control and Prevention to avoid reopening too early, many state officials are pushing forward with plans to reopen their states and economies as soon as this week. Although there are serious concerns about the health implications of reopening public businesses and easing social distancing requirements, many officials assert that, if states do not reopen sooner rather than later, the country will face unprecedented economic damage. At this time, the states pushing for reopening have not yet met the reopening guidelines issued by President Donald Trump on April 16.

Guidelines for opening up America again

President Trump unveiled a three-phased approach intended to assist state and local officials with reopening their economies, getting people back to work, and continuing to protect American lives. Under the guidelines, states should meet certain gating criteria before moving forward to the next reopening stage to ensure that they are not moving too quickly.

• Gating Criteria – The following should be satisfied before proceeding to phase one:
  • Downward trajectory of influenza-like illnesses and covid-like syndromic cases reported within a 14-day period.
  • Downward trajectory of documented cases or positive tests as a percent of total tests within a 14-day period.
  • Treat all patients without crisis care and robust testing program in place for at-risk healthcare workers, including emerging antibody testing.

• Phase One – Vulnerable individuals should continue to shelter in place and follow social distancing requirements. Gatherings larger than ten people and nonessential travel should be avoided. Employers should encourage work from home procedures and provide special accommodations for vulnerable employees.
• Phase Two – To move forward, the gating criteria must be satisfied for a second time. Vulnerable individuals should remain home but restrictions on nonessential travel may be lifted and social gatherings of up to fifty people are permitted. Employers should encourage telework, enforce social distancing in the work place, and provide accommodations for vulnerable employees.
• Phase Three – If there has not been a rebound in cases and the gating criteria are satisfied for a third time, states may implement phase three. Low-risk individuals should consider minimizing time spent in crowded environments and employers may resume unrestricted staffing of worksites.

States reopening regardless of federal guidelines

Despite not meeting federal guidelines, several states including Georgia, South Carolina, Tennessee and Texas, continue to forward with reopening certain nonessential businesses and easing stay-at-home restrictions. Other state and local officials share concerns that reopening will cause a surge in COVID-19 positive cases and will overwhelm the hospital systems. However, for some state officials, including Georgia Governor Brian Kemp, the risk is worth reopening the economy. Governor Kemp stated during his April 20 briefing, “We have more people moving around, we’re probably going to see our cases continue to go up, but we’re a lot better prepared for that now than we were over a month ago.”

Reopening has caused confusion among local and state officials trying to determine which guidelines and procedures to follow. For example, President Trump’s guidelines suggest that a phased opening only occur if there has been a downward trajectory of decreased coronavirus cases for a 14-day period. This has not yet happened. For example, according to Johns Hopkins University, Georgia had 3,800 new cases the week of April 5; 6,000 new cases the week of April 12; and 5,700 new cases the week of April 19.

The confusion among local, state and federal officials has the potential to cause more than just potential health problems. A staggered response throughout the country, while some states follow federal guidelines and others do not, has the potential to create political tension, disagreement amongst a state and its local officials, and present interesting legal dilemmas should officials disagree on the proper route to move forward. Tension among officials has already been felt in states like Texas and Georgia. Many city and local officials have urged businesses to remain closed even if state restrictions are lifted. For instance, Dallas County’s stay-at-home order was extended until May 15. However, Texas Governor Greg Abbott stated that if he orders businesses to open next week, his authority would take precedence. Similarly in Georgia, Governor Kemp stated no local ordinance can restrict the openings of businesses, which will be implemented statewide.

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