Massachusetts’ Covid-19 Attestation

The state of Massachusetts has unveiled its plans to resume business activity after 10 weeks of Covid-19 lockdown, complete with a step that compliance professionals may see more often: a compliance attestation poster that every business will need to display publicly and prominently. 

The poster certifies that the business in question has taken four steps as part of reopening:

• Workers are wearing face coverings and social distancing measures are in place;
• Hand washing capabilities are provided, and employees regularly sanitizing high-touch areas;
• Staff have received training regarding social distancing and hygiene protocols; 
• The company has established thorough cleaning and disinfecting protocols;

The post must be signed (presumably by the manager), and displayed somewhere visible to customers and workers alike. The state itself won’t impose penalties for businesses that don’t display the poster, but scofflaws can be reported to their local boards of health, which could decide to ding repeat offenders with fines. 

Massachusetts businesses will also need a written Covid-19 control plan, and the state did provide a two-page template plan that companies can use. Companies won’t need to submit that plan to the state for approval, but they will need to keep a copy of the plan on the premises at all times if state or local inspectors show up and want to see it. The written plan will need to exist at every listed location, by the way; even if the business is part of a larger corporate parent. 

And the state provided a sample workplace poster on Covid-19 practices that employees should follow, akin to those anti-discrimination and fair labor posters you already hang in the breakroom. The Covid-19 poster will be another addition to that pantheon of compliance literature. 

All of this is part of a larger package of guidance Massachusetts released on Monday, when Gov. Charlie Baker outlined a four-phase plan to resuming business operations. Sectors with the least person-to-person contact (construction, manufacturing, small hair salons, laboratories) can open first, with lots of social distancing requirements included. Assuming that phase goes smoothly, then more businesses (children’s day camps, restaurants, retail) will be allowed to open in several weeks with fewer restrictions; and so forth.

Individual companies will still need to meet stringent health requirements tailored to their business sector. For example, hair salons will need to stagger lunch breaks and reconfigure common areas so people are at least six feet apart. Laboratories will need to restrict access for office workers, delivery services, or anyone else not working directly in research. 

The Covid-19 attestation posters are intended to have managers sign on the dotted line that, yes, all the state’s requirements for training and hygiene are in place. 

The Bigger Compliance Picture Here

Massachusetts’ requirements are worth noting because of what they represent. For some time now we’ve talked about how companies need to develop new risk assessment and internal control capabilities to implement changes so the business can reopen safely. Now the Bay State is one glimpse of the documentation and regulatory compliance burdens that will be part of that effort. 

I don’t know how many other states have released specific attestation and policy requirements yet. I haven’t found others, but each state seems to be charting its own path forward, and their plans aren’t always easy to navigate. If you know of similar attestation requirements in other states, let me know at [email protected].

What intrigues me, however, is that with this public attestation, Massachusetts is creating a new type of whistleblower risk issue. Employees will be able to see what the boss is saying about social distancing, training, and hygiene; customers will, too. So if the business is somehow failing to meet those standards, people will now have a grievance they can bring to regulators’ attention. 

Moreover, we can never forget the magnifying effect of social media. In theory, a customer upset with a company’s poor Covid-19 practices could call the local board of health. In practice, that person is much more likely to snap a photo or video of the bad practice (perhaps with that attestation poster in the background) and then shotgun the clip all over Twitter and Facebook. That’s likely to give the executive team a lot more heartburn than an inquiry from the local health inspector. 

File under: Prophylactic Measures.