Trump Outlines Phases Of COVID-19 Reopening Led By States

By Andrew Kragie
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Law360 (April 16, 2020, 11:34 PM EDT) -- President Donald Trump on Thursday unveiled federal guidelines for the regional reopening of the U.S. economy after local pandemic peaks, relying on governors to gradually ease restrictions on workplaces, hospitals, schools, travel, dining, sports and other parts of public life.

Trump suggested that 29 states may be nearly ready to roll back restrictions put in place to help slow the spread of COVID-19, the disease caused by the novel coronavirus, and he said some states could start early as Friday, although he acknowledged that governors will be the ones to make those decisions. Medical experts at the White House briefing described how regions can begin to reopen businesses and ease social distancing when they see manageable demands on health care resources and declining cases of COVID-19, which has killed over 33,000 in the United States.

"Our experts say the curve has flattened and the peak in new cases is behind us," Trump said. "Healthy Americans will now be able to return to work as conditions on the ground allow. Instead of a blanket shutdown, we will pursue a focus on sheltering the highest-risk individuals."

The administration's plan came hours after news broke that last week saw another 5 million unemployment claims, bringing the total to more than 22 million jobs lost in four weeks. 

"A national shutdown is not a sustainable long-term solution. To preserve the health of our citizens, we must also preserve the health and functioning of our economy," he added. "We want to get it back very, very quickly. That's what is going to happen. I believe it will boom."

Opening in Phases

A 20-page slideshow from the White House and the U.S. Centers for Disease Control and Prevention identified criteria that a region or state should meet before easing any restrictions: a two-week decline in reported and confirmed cases, the ability to "treat all patients without crisis care" and vigorous testing for health care providers.

Once an area meets those conditions, it can proceed to a Phase 1 that includes more nonessential workplaces opened. Employers are encouraged to continue some remote work, bring back workers in waves, close common areas, minimize travel and accommodate vulnerable employees — people who are older or who have serious medical conditions.

Those vulnerable people should continue to shelter in place in Phase 1, according to the guidelines, while others should continue social distancing in public and avoid close gatherings of more than 10 people.

Schools and day cares would stay closed, along with bars. Large venues — including restaurants, sports arenas and movie theaters — would "operate under strict physical distancing protocols."

Hospitals and nursing homes would still ban visitors, but some elective outpatient surgeries could resume.

At all stages, the guidelines recommend employers check worker temperatures, continue some social distancing, provide protective equipment and engage in containment efforts, including "workforce contact tracing." The plan also urges employers to keep away symptomatic workers and have employees stay home when sick, which could spur more debate about paid sick leave policies across all industries.

States or regions would graduate to Phase 2 if they satisfy the "gating criteria" a second time, with no signs of a virus resurgence. That allows for more travel, school openings and moderated social distancing at large venues.

Phase 3 commences after meeting the criteria a third time, with vulnerable people starting to leave home and only limited social distancing for most people.

While the prescription of three two-week gating periods implies a process as fast as six weeks, top medical experts warned that progress could be unpredictable and reversible.

"We did not put a timeline on any of the phases," said Dr. Deborah Birx, coordinator of the White House coronavirus task force. "We want the governors — with the data that they have, community by community — to be setting up those timelines."

Dr. Anthony Fauci, the nation's top infectious disease expert, warned that "there may be some setbacks. Let's face it, this is uncharted water. … We may have to pull back a little and then go forward."

New Normal of Containment

Fauci said the "new normal" would still look different than life before the pandemic, at least until a vaccine is widely available.

"We're about to enter a new phase of this where we're going back to containment," said Dr. Robert Redfield, the director of the CDC. "The major thrust of how we are going to ... make sure that we continue to keep this nation open is early case recognition, isolation and contact tracing. That's the fundamentals of public health."

Birx described "sentinel surveillance" with testing meant to find contagious people, especially in vulnerable populations such as nursing homes, inner-city federal clinics and Native American communities.

When a reporter asked about a return to packed public venues, Trump said he didn't want the "new normal" to mean sports arenas and restaurants only operate at half-capacity, but more like 90% capacity. However, Fauci warned to expect some social distancing and possible cancellations during virus rebounds.

State by State

Experts acknowledged varying conditions across the country, while the president said governors would take the lead.

"There are some regions, states, locations that are going to be almost already into some of that gating, and will have already fulfilled some of those criteria," Fauci said. "Others, because of the dynamics of the outbreak in the area, will take longer to be able to do that. But you don't get to Phase 1 until you get through the gating."

Trump said he thinks 29 sates "are in that ballgame ... to open relatively soon," but he declined to identify those states, leaving announcements up to governors — some of whom have prolonged restrictions. New York Gov. Andrew Cuomo on Thursday extended his stay-at-home order through May 15.

"If they need to remain closed," Trump said, "we will allow them to do that. And if they believe it is time to reopen, we will provide them the freedom and guidance to accomplish that task."

The president's tone marked a stark departure from his assertion Monday of "total" authority in the pandemic. He also endorsed regional coordination among states.

A bipartisan group of seven Midwestern governors announced Thursday they will "work in close coordination to reopen the economy in the Midwest region." The move followed similar groupings Monday on the East and West coasts.

While Trump touted strong relationships with governors of both parties, he complained about "some states that got too much credit for what they've done." He also singled out the governor of hard-hit Washington state, Jay Inslee, a Democrat who sought to the party's nomination to challenge Trump. Two weeks ago, Inslee asked his state's manufacturers to start producing a variety medical supplies and protective equipment because he said the federal government could not provide enough.

"The governor of Washington was saying that he can't find cotton," the president said. "A swab is a very easy thing to get. Essentially, it's a little bit more sophisticated than a Q-tip. ... You know, the federal government shouldn't be forced to go and do everything."

Focus on Borders

The president, who campaigned on immigration restrictions, also said borders would play a major role in containment.

"A cruel virus from a distant land has unfairly claimed thousands of precious American lives," he said. "As we begin a science-based reopening, we must be extra vigilant in blocking the foreign entry of the virus from abroad. Border control, travel restrictions and other limitations on entry are more important than ever to keep the virus in check."

International travel restrictions are not mentioned in the formal guidelines. Fauci said the plan was made without considering politics.

"The predominant and completely driving element that we put into this was the safety and the health of the American public," he said. "I know there are a lot of other considerations that go into opening — considerations that you've heard of right from this podium. But the dominating drive of this was to make sure that this is done in the safest way possible."

Mixed Reactions

The White House plan drew criticism from the top Democrat in Congress, but some praise from public health experts.

House Speaker Nancy Pelosi, D-Calif., said in a statement that testing would be key for a return to normalcy and argued that the "vague and inconsistent document does nothing to make up for the president's failure to listen to the scientists and produce and distribute national rapid testing."

Trump administration alum Dr. Scott Gottlieb, who led the Food and Drug Administration, tweeted that the plan was a "sensible set of broad guidelines on gradually restarting social activities" mostly consistent with state plans, except for its speedy vision for gyms, sports arenas and other large venues.

Dr. Ashish Jha, director of the Harvard Global Health Institute, tweeted his concern that the plan "doesn't fully appreciate all of the risks and challenges of staying open." He had praise for the plan's staged approach, but questioned the gating criteria and reliance on states for testing.

A top health official from the Obama administration, Andy Slavitt, tweeted that the guidelines "put the burden entirely on the governors" and "contain the right elements but need to be more specific." He questioned the plan to allow travel between cities and reopen sports venues to fans.

Slavitt also praised the absence of a timeline, but question whether the state-led approach was meant to shift political consequences to governors if citizens get angry over slow openings hurting the economy or fast openings potentially hurting public health.

--Additional reporting by Jeff Overley. Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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