Phase 3 – Are We There Yet?

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All eight regions in Washington State are now in Phase 2 under Governor Jay Inslee’s Healthy Washington – Roadmap to Recovery plan for phased reopening of business.  With COVID-19 infection numbers in decline across the state, businesses are champing at the bit for “Phase 3”.  After all, the thinking goes, if the Governor is now encouraging schools to reopen, then it must be ok for businesses with PPE in place to open to employees and customers beyond their current 25% capacity limits.

But there is a fundamental matter that must be addressed first – what will Phase 3 look like?

When in early January 2021 Governor Inslee rolled out the Healthy Washington plan, which replaced his prior four-phase Safe Start Washington plan, he only laid out the first two phases.  He would provide the specifics on Phase 3 and beyond, we were told, when we get there.

Well, we are now “there,” or close to it.  When asked during his press conference on February 16 what Phase 3 would look like, Inslee replied that he didn’t know.  His answer stated phrases that included “We have not identified that”, “We have not identified our next steps”, and “I don’t have any news for you today.”  Instead, Inslee deferred on Phase 3, “want[ing] to see some science on the effectiveness of these vaccines against these new variants.”

Those words offer little comfort to businesses hanging on to viability by a thread, waiting and hoping for an increase in their operational capacity limits.  For starters, there is nothing in the Healthy Washington plan that suggests “effectiveness of vaccines against variants” is a factor in whether a region may move up to the next phase or not.

The plan is clear on the metrics by which the Washington State Department of Health assesses each region.  There are four metrics in total – two metrics that measure community disease levels (trends in case rates and test positivity) and two that measure health system capacity (trends in COVID-19 hospital admission rates and ICU occupancy).  To move from Phase 1 to Phase 2, a region had to meet three of the following four metrics:

  • 10% decreasing trend in coronavirus case rates
  • 10% decrease in coronavirus hospital admission rates
  • ICU occupancy that is less than 90%
  • Test positivity rate that is less than 10%

A region must continue to meet at least three of these metrics to remain in Phase 2. A region that meets less than three of the metrics will move back to Phase 1.

If meeting three of the four metrics is sufficient for a region to move from Phase 1 to Phase 2, then you would think that a region in Phase 2 meeting three of the metrics would be eligible to move to Phase 3.  But that is not what the Healthy Washington plan says; it only says that such a region gets to remain at Phase 2.

That needs to change.  The Governor’s office needs to issue standards for Phase 3 elevation and for business operations during Phase 3.  In my view, a region that again meets three or more of the four metrics should be elevated to Phase 3, and the businesses in that region are deserving of lesser restrictions on their employee and customer capacity limits for the sake of expanding their business operations.

The DOH assesses each region’s metrics for phasing purposes every two weeks.  The next assessment comes this Thursday, February 25, with any changes in phase taking effect on Monday, March 1.  It is conceivable, if not likely, that one or more regions in Washington will meet three or more of the foregoing metrics this week.

The sooner standards for Phase 3 promotion and business operations are announced, the better.  Businesses need to know the details of Phase 3 well in advance of promotion to the phase so they can do their own advance planning to be ready to roll upon elevation to Phase 3.  Time is of the essence for businesses needing to hit the ground running as soon as each new phase opens.  My hope is that Governor Inslee’s staff is hard at work this week laying out Phase 3 for public release before the weekend.  And that regions that meet three or more metrics this week will find themselves in Phase 3 on March 1.

As soon as Governor Inslee issues standards for elevating regions to Phase 3 and for business operations in Phase 3, we will post another blog telling you what you need to know about those standards.  Stay tuned!


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).


About the Authors

Scott Collins

As managing partner of Helsell Fetterman since 2001, Scott Collins understands the operational aspects of business and how legal issues must be addressed within greater business considerations. Utilizing that perspective, he provides clients with cost-effective legal counsel achieving practical results that serve their business goals.

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