The “New Normal” – Governor Cooper Announces Phased Plan to Lift Stay-At-Home Restrictions

By John D. Burns

Today, April 23, 2020, Governor Roy Cooper issued a new Emergency Executive Order No. 135, updating his orders and keeping stay-at-home restrictions in place until May 8. Announcing that the state has identified 7,608 confirmed cases, with 486 people in the hospital and 253 deaths to date, the Governor stated that the state is making progress but is not yet ready to lift the “stay at home” orders he had imposed. This order will keep in place restrictions on restaurants, bars, and other “close-contact” businesses that the Governor imposed in March, and limits travel away from home to those limited purposes identified as essential.

The Governor and Dr. Mandy Cohen, Secretary of the Department of Health and Human Services, did announce a three-stage plan for returning the North Carolina economy to a “new normal.” While North Carolina has been successful in “flattening the curve” of new infections in order to control the number of new cases at any one time and reduce the impact on hospitals, the data have not yet shown sustained declines. Dr. Cohen set out the various metrics that the State will use to determine when the restrictions can begin to be eased, and the Governor explained what each stage of easing will look like.

Easing will begin when each of the following metrics are met:

(1) A continued decrease in “COVID like syndromic cases over 14 days.” This is the data obtained from surveillance of hospitals and medical practice data, showing the number of cases that present like COVID-19, including high fever, respiratory distress, and other symptoms. This is currently happening, and Dr. Cohen described this metric as positive.

(2) A decrease or a “sustained leveling” of lab-confirmed cases over 14 days.

(3) A decrease in the number of positive cases as a percentage of total tests over 14 days.

(4) A decrease or sustained leveling of the total hospitalizations over 14 days.

On each of these last three metrics, Dr. Cohen showed data that reflected that the last few days have been positive, but such progress is not yet “sustained” over a 14 day period.

In addition, Dr. Cohen stated that before the restrictions can be phased out, three other requirements must be met: (1) Testing volume must increase to 5000-7000 tests per day. That level has been reached over the last two days. (2) Tracing capacity must be increased from 250 to over 500 employees. Dr. Cohen announced that a partner has been identified to increase that capacity and the details are being worked out. (3) The state must have sufficient capacity in Personal Protective Equipment to meet the anticipated 30-day demand. Dr. Cohen announced that North Carolina has a 30 day supply of some PPE, but not in N-95 masks or protective gowns.

The Governor then announced a three-stage approach to lifting the stay-at-home orders as these metrics are met:

Phase I – When the metrics reach the levels announced by Dr. Cohen, the Governor will issue an order lifting some individual stay-at-home restrictions to allow people to travel more freely and to do more than the limited “essential” activities (essential work, groceries, home-improvement and pharmacies) laid out in his March 27 stay-at-home order. People will then be able to personally patronize more of the businesses identified as essential under the North Carolina executive orders. The Governor stated that since North Carolina’s definition of essential business is broader than in some other states, this phase will allow customers to leave their homes and allow the economy to slowly restart without increasing the opportunity for large-scale exposures. Such businesses will continue to be required to implement enhanced hygiene and social-distancing. Restrictions on mass gatherings will remain in place and limited to fewer than 10 people during this phase. Individuals will still be requested to wear masks or face-coverings in public where distancing cannot be maintained. Restrictions on visitation and contact at nursing homes and other congregant living situations will also remain in place.

If the metrics remain at the announced levels after implementation of Phase I for what the Governor described as “two or three weeks of that” without a rebound, the state will then move to Phase II:

Phase II – The individual Stay at Home order will be lifted. People will be able to visit one another more freely. Close-contact businesses such as bars, restaurants, salons, and houses of worship will be allowed to commence reduced-capacity operations with special instructions regarding social distancing. The Governor announced that he is currently working with the business community and healthcare advisors on what these reduced operations and social distancing requirements will look like. The Order will still encourage vulnerable populations to continue to stay at home. Mass gathering limits will be increased. Nursing home and congregant living situations will remain under restriction.

If the metrics remain within the bounds that Dr. Cohen announced after a reasonable period under Phase II, the State will move to Phase III:

Phase III – Under this phase, guidelines around vulnerable populations will continue to loosen. Allowed capacity for bars, restaurants, houses of worship and other close-contact or mass-gathering locations will also continue to loosen. The Governor stated that entertainment venues will reopen, with reduced capacities. During this phase, nursing home restrictions will remain in place. Individuals will continue to be encouraged to wear face coverings in situations where social-distancing is not possible, and to practice enhanced hygiene and hand-washing.  

It is important to note that, at any time during this phased approach, if the data and metrics show a rebound in cases that could pose a threat to public health and hospital capacity, certain restrictions could be reimposed. The Governor stressed that such decisions will be based on data and the best medical evidence in consultation with business and community leaders. As the Governor stated, “while we know that life as we lived it in January and February of this year will not return until we have a vaccine, if we can go back to work and play carefully, we can rebuild our economy.”  He continued, “we now know what is needed to transition to a new normal and what that new normal will look like.”

At each of these stages, local governments will also be addressing their own stay-at-home orders, which can be more restrictive than those imposed by the state. As this process moves forward, we at Forrest Firm want to help you understand your rights and your opportunities to reach the “new normal” in your business. Please contact us if you have any questions.