Businesses across the country are facing challenges, including lawsuits, as they grapple with how COVID-19 has impacted their operations, work forces, and supply chains. The wave of litigation is rising, and it appears that no industry is immune. Schiff Hardin’s Coronavirus Task Force is publishing this series to identify of-the-moment issues and potential liabilities facing businesses as they begin to re-open, transform their processes, and adapt to the new reality.
As businesses start to reopen across the country, customer-facing companies should consider best practices to reduce the risks of customer and employee exposure to the novel coronavirus, the cause of COVID-19. The right approach will differ based on the type of business, the state and local government guidelines and orders in place, and the geographic region in which the business operates. A hair salon in New York City, for example, will need to take different precautions than an outdoor nursery in Anchorage. Companies should develop a thoughtful plan to reduce the chance of exposure to the virus at a business given the ever-evolving scientific understanding of the disease. Here are five ideas that businesses can use to help ensure that their customers and employees remain safe.
- Communicate clear written policies to your employees.
Employers should communicate clear guidelines to employees to protect both their employees and customers. Employees will be more likely to follow instructions that they receive in writing, and when they have opportunities to ask for clarification and understand the rationale behind the policies. Policies may range from an increased cleaning regimen or a clarification of the sick leave policy to how employees can communicate effectively with customers who are not following local orders or the company’s own rules regarding preventative measures like social distancing and the use of face coverings. A good place for businesses to start is the Occupational Safety and Health Administration (OSHA) guidance issued in the past several weeks for different industries where customers come into contact with workers, such as restaurants offering takeout, package delivery, and retail.
Likewise, many local governments are publishing frameworks and guidelines that businesses that are re-opening in those jurisdictions should adhere to. Be sure to keep apprised of changing government orders and adjust the policies, if needed, as those orders and medical advice change over the coming weeks and months. Consistent and effective policies will both help to ensure safety and will also work to avoid unwanted public relations problems or media scrutiny and potentially liability if employees or customers later claim to have been exposed to the virus at the business.
- Establish a cleaning regimen based on best practices.
Companies should consider best practices for keeping facilities clean, both on a regular basis and if a business learns that an employee or customer has tested positive for COVID-19. Again, these practices will vary based on the type of business and regional concerns. The Centers for Disease Control and Prevention (CDC) has issued recommendations for regular cleaning of facilities and measures to take if someone has tested positive. Local government agencies also have published guidance on what a business should do if somebody tests positive for COVID-19 at its facility. If outside contractors or landlords provide cleaning services, communicate with their leadership to determine that cleaning procedures will meet the needs and risks of your particular business. While the specific measures companies should take will vary from case to case, adhering to governmental recommendations and guidelines should be the baseline as companies reopen.
- Determine if a phased reopening is practical.
Even if not mandated by local government, businesses may want to explore a phased reopening as infection rates fluctuate in certain areas. A phased reopening makes implementing preventative measures easier and also may benefit the business by broadcasting to the community that it is taking a responsible approach to reopening. As many commentators have noted, the economy will not return to normal with the flip of a switch. A recent Washington Post-University of Maryland poll found that a wide majority of Americans oppose reopening certain types of businesses, even as local governments start to ease restrictions. If businesses want customers to return, they should show that they are taking a thoughtful, evidence-based approach to reopening. Is it possible to effectively offer curbside service at retail stores for several weeks? Can a restaurant limit the number of tables or start by offering only outdoor seating, even if not required by a local order? If the business operates by appointment, can it leave more time in between appointments to allow for additional cleaning? Businesses should take these and other considerations specific to their situations into account when reopening.
- Communicate expectations to customers.
When companies communicate clearly with their customers, it is more likely that customers will follow instructions. Post signage that both describes what the company is doing to protect its customers and also creates social buy-in to voluntary measures that customers should take when they are on the premises. Especially in areas where social distancing and wearing masks have not been mandated by state or local government, encouraging customers to adopt these measures can be helpful. Take simple measures such as taping off areas on the floor where lines will develop to encourage appropriate social distancing behavior by customers. While it may be difficult to enforce these measures once local orders are lifted, social acceptance of the voluntary policies can lead to higher levels of compliance today and down the road.
- Determine if there is a need or practical way to notify customers that they may have been exposed to COVID-19.
Depending on the type of business, owners may have a practical way to advise customers that they may have encountered another customer or an employee who has been diagnosed with COVID-19. As appointment-based businesses reopen, they may want to develop a policy to notify customers if there is a high likelihood that they came into close contact with a contagious person. Businesses should be sure to balance providing notifications with needlessly raising alarm and also ensuring the privacy of the contagious person. But this is also a way for businesses to alert customers if there is a significant chance of exposure so that they will be more vigilant in seeking medical treatment or testing if they experience symptoms.
Businesses are beginning to reopen in many parts of the country, even as a vaccine or highly effective therapeutic treatment probably is a long way off. To protect both people and brand reputation, businesses should think through the best approaches to reopen given the risks in their particular industry and region.