Business closures have been immensely difficult for companies of all sizes during the COVID-19 pandemic. But reopening is proving difficult, too, especially given the ever-changing nature of the pandemic. As cases have surged in recent weeks in new parts of the country, businesses have been forced to reassess their operational plans in both the near- and long-term. Owners and executives are paying close attention both to customer and employee safety. And businesses must be mindful of potential legal ramifications of their decisions.
|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 face the new reality.|
This is the first post in a three-part series setting out some things companies should consider over the coming weeks and months. Of course, these considerations won’t apply to all businesses, but every business should develop a coherent plan that addresses issues germane to its particular situation. The past several weeks have shown that companies must prepare, adapt, and adjust, as it is evident that we will be in the fight against COVID-19 for the long haul.
Stay Tuned-In to Government Orders and Guidance
Watch orders issued by state and local governments closely. With “phased” reopening underway in many parts of the country, different types of businesses will be permitted to open on different schedules and with new and different rules once they are open. And perhaps more importantly, certain states have now begun to pause or reverse certain reopening plans as outbreaks occur. As of mid-July, more than 20 states required masks either across the state or in certain hard-hit counties. In addition, other states have permitted local municipalities to enact mask orders. Businesses must remain vigilant to follow local rules not only to avoid civil citations, but also to keep employees and customers safe. Civil citations also can have ramifications in subsequent pandemic-related litigation. In some circumstances, plaintiffs can show evidence of civil citations to a jury to suggest a business was not meeting its obligations. Businesses covered by government orders and guidance should consult with attorneys to ensure they are in compliance.
Adopt appropriate policies when operating in multiple jurisdictions. As states reopen on all sorts of schedules and in all manner of ways, businesses that operate in multiple states may need to determine what guidance(s) they should follow. It may be easier to implement the most stringent measures company-wide, but the decision will depend on the particular circumstances each business faces. Businesses should think through how to most effectively comply with the patchwork of regulations in the places where they operate. As an example, in the past week or so, many national retailers have instituted mask policies nationwide.
Check for any new guidance or regulations from regulatory bodies. If a company operates in a highly regulated industry, it needs to ensure that it complies with any regulatory changes resulting from the pandemic. Short of regulations, regulators also have offered helpful guidance tailored to their respective industries. For instance, the U.S. Food and Drug Administration (FDA) has published a wide array of guidance for the businesses it regulates. The FDA has provided guidance on reporting operational changes at food manufacturing facilities, manufacturing alcohol-based hand sanitizer, and conducting clinical trials on medical products. The Consumer Product Safety Commission (CPSC) has issued new advice for its staff, and new procedures,for the pandemic, and Schiff Hardin has written about some of the things companies regulated by the CPSC should consider.
Check CDC or other advisory guidelines. Companies should monitor and consider applying industry guidelines or government-issued advisories, even if not mandated where they are located. In early May, for example, the CDC issued revised guidance with mitigation strategies that is available on its website for businesses and employers. In the unfortunate event that litigation arises from a company’s reopening, the business will want to show that it considered and applied industry or other non-mandatory guidelines to reduce the risk of liability. Indeed, in arguing that a business violated a standard of care, plaintiffs will often seek to question company witnesses or introduce evidence of non-compliance with recommended standards that are not required by law. By evaluating and applying advisory guidelines, businesses also can show customers and employees that the company is making additional efforts to reduce the risk of contracting the coronavirus.
Create Thoughtful Policies for Reopening Physical Locations
Develop clear, written policies for each stage of reopening. Employees will be more likely to follow instructions when they receive them in writing, when they have opportunities to ask for clarification, and when they understand the rationale behind the policies. Employers should consider requiring employees to sign written acknowledgments thatconfirm that they have read and understood new reopening/COVID policies. And when a business develops these policies, it will think through the particular risks associated with its business. A nail salon will have far different concerns than an outdoor driving range. Developing written policies that have not been reviewed by legal counsel could actually increase litigation risk. With the help of legal counsel, business leaders should develop policies with all of their internal and external stakeholders in mind. And if litigation arises, a thoughtful written policy will show a judge or jury that a company takes safety seriously.
Consider best practices for keeping facilities clean after reopening. Cleaning procedures will vary widely based on the type of business and regional concerns. The CDC has issued recommendations for regular cleaning of facilities and measures to take if someone has tested positive. If outside contractors or landlords provide cleaning services, communicate with their management to ensure that cleaning procedures will meet the needs and risks of your particular business. As with the reopening plan, in general, the cleaning regimen should be tailored to the amount of contact between individuals in the regular operation of the business.
Devise a heightened cleaning plan to implement with a positive diagnosis. Businesses should plan ahead for any additional cleaning procedures that will be needed if an employee or customer tests positive for the coronavirus. Companies should either work with their regular cleaning provider beforehand to ensure that the provider can meet the additional cleaning protocols or identify a different contractor that will be available for heightened cleaning, particularly on short notice. Work with that company to determine what type of cleaning should be done based on the infected person’s activities at the business. As has been apparent in the past several weeks, infections may be inevitable, no matter the precautions a business has taken.
To the extent practicable, require social distancing within the business. Based on the type of business and related risks, the reopening plan of one business can vary widely from that of another. That said, at least at the outset of reopening, social distancing requirements are a way both to protect customers and employees and to inspire confidence in customers to return. Businesses should implement social distancing measures to the extent practicable in their particular workplaces and storefronts.
Consider providing PPE or additional cleaning products. As supply chains begin to return to normal, businesses may be able to more readily acquire masks, rubber gloves, and hand sanitizer. Many people will surely continue to wear their own masks when visiting reopened businesses, even when not mandated by law, but businesses may also consider providing masks for employees and customers who do not. Companies may also wish to set up hand sanitizing stations around high-touch areas such as doors, elevators, and self-checkout kiosks, particularly as sanitizer supply becomes more readily available. These actions signal to employees and customers that the company is trying to make visits to the business as safe as possible and reinforce the steps they should take on their own.
Implement health checks in businesses that require more personal contact. For businesses where employees come into close, sustained contact with visitors, it is advisable to require employees and visitors to submit to temperature checks and to complete brief health questionnaires to determine if they are experiencing any symptoms of COVID-19.
As we enter the next phase of the pandemic, businesses must prepare for the reality that the country will not return to normal any time soon. Watch for our next posts on reopening in the coming weeks, as we will address (1) how businesses can communicate effectively with employees, customers, and the general public, and (2) how businesses can plan for continuing outbreaks, a potential resurgence in the fall, and diagnoses among employees and customers.