Helsell Fetterman

Phase What? King County Now in “Phase 1.5”

By Helsell / June 8, 2020

On June 5, 2020, King County was approved for “modified Phase 1” under Washington State’s Safe Start Washington plan for reopening business in phases.  Modified Phase 1 is not everything that Phase 2 is, but it’s more than Phase 1 where the county has been stuck while other counties have moved to Phase 2, and in some cases to Phase 3.  Some refer to the newly-created phase as “Phase 1.5.”

King County’s new Phase 1.5 status permits a broad range of businesses to open their doors on a very limited basis.  That’s the good news, although some businesses are torn as to whether they can profit from operating at the limited capacity allowed.  The disappointing aspect of Phase 1.5 is that it will likely delay moving King County to Phase 2 and beyond, which will prolong the adverse economic impacts of the COVID-19 pandemic in King County, particularly in those industries that have struggled to survive closure the past two-plus months.

Background

Friday, June 5, 2020 was a big day in Washington State under Governor Jay Inslee’s Safe Start Washington plan for reopening business in phases.  Fourteen of the state’s 39 counties moved to a higher phase, loosening the COVID-19-related restrictions for businesses to reopen and operate.  Seven counties moved to Phase 3 – Columbia, Ferry, Garfield, Lincoln, Pend Oreille, Stevens, and Wahkiakum.  Six counties moved to Phase 2 – Clark, Okanogan, Pierce, Skagit, Snohomish, and Whatcom.  King County moved to Phase 1.5.  Here is how the state looked as of June 5, 2020:

An eighth county, Whitman County, moved to Phase 3 on Saturday, June 6.

I addressed Governor Inslee’s May 4, 2020 Safe Start plan in a prior post (click here).  The Safe Start plan, with its four “phases,” continues to govern the reopening of business in Washington State, but it said nothing about allowing a county to move to a modified status within a phase.  On May 31, 2020, Governor Inslee made important changes to the plan when he issued a new proclamation to replace his former Stay Home-Stay Healthy proclamation calling for shelter-in-place statewide.

            Safe Start–Stay Healthy Proclamation

The May 31 proclamation brings together Governor Inslee’s prior Stay Home and Safe Start plans in a combined order that he calls his Safe Start-Stay Healthy proclamation, which is now in effect through July 1, 2020.  The May 31 proclamation extended much of the Stay Home shelter-in-place requirements, but now permits Washingtonians to leave their homes for employment in and to patronize the non-essential businesses that reopen in accordance with the Safe Start plan.

The Safe Start-Stay Healthy proclamation also fundamentally changed Governor Inslee’s approach for phasing counties under the Safe Start plan.  Beginning June 1, 2020, the Safe Start plan will be applied on a county-by-county basis.  A county that has been in Phase 1 or 2 for three weeks or more may apply to the Washington State Secretary of Health to move in whole or in part to the next phase.  Such application must come from the County Executive, or, in the absence of a County Executive, with the approval of the County Council or Commission.

The implication is that a county will not be considered for elevation to the next phase unless and until it makes application for that move.  This application process also gives the county the ability to decide whether it wants to fully move to the next phase, or just obtain approval for certain new or expanded business activity within the existing phase.  Likewise, the May 31 proclamation authorized the Secretary of Health to exercise discretion to only approve a county for certain activities, even if the county seeks a full move to the next phase.

You will find a full copy of the Safe Start–Stay Healthy proclamation here.

            Safe Start Washington Phased Reopening Plan

On May 31, in conjunction with the Safe Start-Stay Healthy proclamation, Governor Inslee issued the Safe Start Washington Phased Reopening Plan, which you will find here.  This plan updates the process for moving Washington State through a phased reopening county-by-county, allowing for flexibility and local control to address COVID-19 disease activity geographically within the state.  The plan continues to be data driven in assessing a county’s COVID-19 disease activity, along with health care system readiness, testing capacity and availability, case and contact investigations, and ability to protect high-risk populations. The plan allows counties and the Secretary of Health to review COVID-19 activity within a county and the ability for the county to respond when determining if the county is ready to move into a new phase.

Phased Approach to Reopening County-By-County.  A county will stay in every phase for a minimum of three weeks.  During that time, the county’s data on and ability to respond to COVID-19 will be evaluated under the metrics and targets set forth in the plan.  No phase will last less than three weeks before moving to the next phase (unless moving back to a previous phase) in order to allow one complete disease incubation period of two weeks, plus an additional week to compile data and confirm trends. After three weeks, a county may apply to move to the next phase through an application submitted the Secretary of Health.

If a county experiences an increase in COVID-19 disease activity, it may need to move back to a prior phase, which it can do without prior approval. Alternatively, the Secretary of Health has the authority to return a county to a prior phase if the county does not do so on its own.

Modified Phasing.  If a county is not ready to move from one phase to the next, it now has the ability apply for a “modified phase.”  Governor Inslee has granted the Secretary of Health discretion to modify or change any part of the phase that a county is in to address the needs of the specific county.  As a result, a county in Phase 1 has the ability to apply for a “modified Phase 1” to allow additional activity above and beyond Phase 1 restrictions.

All activities permitted in response to an application for modified phasing must follow the general and industry-specific, health and safety requirements issued by the Governor for those activities.  Under the express provisions of the Safe Start Washington Phased Reopening Plan, a modified Phase 1 could include the following Phase 2 activities with the specific modifications to the previously issued health and safety requirements listed below:

• Construction: as outlined in Phase 2 requirements.

• Manufacturing operations: as outlined in Phase 2 requirements.

• Real estate: 25% of building occupancy; and indoor services limited to 30 minutes.

• In-store retail: 15% of building occupancy (this does not apply to currently operating essential retail such as grocery stores; currently operating essential retail should continue to follow the Phase 2 requirements.); and indoor services limited to 30 minutes.

• Personal services: 25% of building occupancy.

• Professional services: 25% of building occupancy; and indoor services limited to 30 minutes for customers.

• Photography: as outlined in Phase 2 requirements.

• In-home/domestic services: as outlined in Phase 2 requirements.

• Pet grooming: 25% of building occupancy.

• Restaurants: no indoor dining allowed; and outdoor dining is permitted but seating at 50% of existing outdoor capacity.

King County Modified Phase 1

On June 5, the Secretary of Health granted King County’s application for modified Phase 1, or what is commonly being referred to as “Phase 1.5.”  Nearly all types of activities that are allowed in Phase 2 are now allowed in King County, just at lower capacities and with 30-minute time limits on certain activities. Generally speaking, Phase 1.5 allows indoor activities at half of the capacity allowed by Phase 2 and at full capacity of what’s allowed outdoors in Phase 2.  The 30-minute time limits apply to indoor meetings involving real estate, professional services, and retail services.

More specifically, construction, manufacturing, photography, and in-home/domestic services may occur in King County as if the county were in Phase 2.  (Note, however, that Governor Inslee has not yet issued industry-specific requirements for in-home/domestic services, which means that such services remain on hold state-wide.)  All other businesses in King County face restrictions on top of Phase 2 restrictions and requirements:

• Real estate (commercial and residential) companies (brokers, firms, independent contractors, and industry partners): All activities may operate subject to Phase 2 requirements, with the exception that at no time may an office’s occupancy be higher than 25% and indoor services must be limited to 30 minutes. Real estate businesses must also provide signage encouraging indoor visits to less than 30 minutes; and at no time may face to face interactions last longer than 30 minutes.

• In-store retail: All non-essential retail activities may operate subject to Phase 2 requirements, with the exception that at no time may an establishment’s occupancy be higher than 15% and indoor services are limited to 30 minutes.  In-store retail businesses must also provide signage encouraging indoor visits to less than 30 minutes; and at no time may face to face interactions last longer than 30 minutes.

• Personal services (cosmetologists, hairstylists, barbers, estheticians, manicurists, nail salons, electrologists, makeup artists, and tattoo artists): All activities may operate subject to Phase 2 requirements, with the exception that at no time may the number of customers be more than 25% the number capable of being served at any one time, or 1 person if it is a single bed/chair studio.

• Professional services (office-based businesses that typically serve a client-base, including accountants, architects, attorneys, engineers, financial advisors, information technologists, insurance agents, tax preparers, and other professional service businesses): All activities may operate subject to Phase 2 requirements, with the exception that at no time may an establishment’s occupancy be higher than 25% and indoor services are limited to 30 minutes.  Professional services businesses must also provide signage encouraging indoor visits to less than 30 minutes; and at no time may face to face interactions last longer than 30 minutes.

• Pet grooming: All activities may operate subject to Phase 2 requirements, with the exception that at no time may an establishment’s occupancy be higher than 25%.

• Restaurants: All outdoor dining activities may operate subject to Phase 2 guidance at 50% outdoor capacity with all tables and chairs maintaining 6 feet of distance. Additional or new outdoor seating would be allowed subject to maintaining 6 feet of distance between tables and chairs, as well as receiving a city permit as is typically needed. All indoor dining services may operate subject to Phase 2 guidance with the exception that at no time may the number of customers be more than 25% of the tables provided such tables and chairs are more than 6 feet away from each other.

Determining Occupancy Restrictions

A question that I am receiving with frequency has to do with the meaning of “occupancy.”  While many businesses are reading the term to mean the size of their workforces, such that 25% occupancy means 25% of their workforce, the term actually refers to the “occupancy load” of your premises.  Occupancy load refers to the total number of people permitted in or on the premises at one time based on the premises’ floor space and function.  In all cases, occupancy load should be equal to or higher than the size of the actual workforce occupying the premises day-in and day-out.

Nevertheless, when recalling your workforce back to your office or jobsite, I recommend that businesses with reduced occupancy requirements during Phase 1.5, except in-store retail, apply the percentage limitation to the size of your workforce.  This will add “margin for error” and will leave you room to accommodate customers, clients, vendors, and other visitors.

Determining Capacity Restrictions

The percentage limitations for restaurants are not stated in terms of “occupancy;” they are stated in terms of “capacity.”  This has a different meaning.  Capacity of a restaurant – both indoors and outdoors – refers to all the tables and seats that you have each inside and outside the restaurant while still maintaining six-foot distancing from the backside of each seat.  The 25% capacity restriction for indoor seating is calculated off the total number of seats so configured inside the restaurant.  Likewise, the 50% capacity restriction for outdoor seating is calculated off the total number of seats so configured outside the restaurant.

The restriction applicable to Personal Services is also based on capacity, which is determined as the number of customers capable of being served at any one time.  If a Personal Services business is capable of serving eight customers at one time, then it is limited in Phase 1.5 to serving just 2 customers.  However, the restriction number can never go below one customer, such that single bed/chair Personal Services studios can still serve one customer at a time.

Discrepancy Between Safe Start and Phase 1.5 for Restaurants

There is a discrepancy between Governor Inslee’s Safe Start Washington Phased Reopening Plan and King County’s Phase 1.5, but I hate to point it out.  Under the Governor’s plan, no indoor restaurant seating is allowed during a modified Phase 1.  However, Phase 1.5 approved by the Secretary of Health for King County permits such indoor seating up to 25% of capacity.  Shhh . . . I don’t want anyone to reverse the Secretary of Health on this.

But this begs the question of which has precedence when they conflict, the Governor’s limitations or the discretionary approval of the Secretary of Health?  My reading of the Governor’s Safe Start-Stay Health proclamation and the Safe Start Washington Phased Reopening Plan is that both vest broad discretion and authority in the Secretary of Health, such that the Secretary of Health may flexibly permit activities and business at levels higher than, or in conflict with, general guidelines and requirements set forth by the Governor.

General Questions

General questions from employers about the Safe Start plan can be directed to the state’s Business Response Center.  Starting on Thursday, June 11, 2020, questions can also be directed to the King County COVID-19 Community and Business Compliance line: 206-296-1608.  Of course, you may also email me at scollins@helsell.com with any questions.

Concluding Remarks

Moving King County to Modified Phase 1 is good news and bad news in my mind.  The good news that it gives businesses closed for the past twelve weeks a chance to reopen and restore their business operations, albeit at restricted levels.  It’s a first step toward returning our businesses to full operations.  It also means that I can finally get a decent haircut.

However, I fear that it takes pressure off Governor Inslee to elevate our state’s most populous county to Phase 2, for it likely means that King County cannot be elevated to Phase 2 for at least another three weeks.  If the Governor is true to his word, he will not again consider moving King County to the next phase until June 26.  That means three more weeks for businesses already hanging by a thread waiting for the expanded opportunity to operate their businesses in Phase 2.  It may also mean that as we watch county after county move to Phase 3 over the next month, King County will be held back from that Phase at least until mid-July.

Helsell Fetterman LLP closely follows Governor Inslee’s proclamations, guidance and statements on reopening business in Washington and we are available to advise and assist you in tailoring your reopening and operations to meet these evolving standards.  For further information or assistance, please contact Scott Collins (scollins@helsell.com).