Legal considerations for hourly employers reopening after COVID-19 restrictions
The coronavirus pandemic has changed the nature of daily life for everyone and has disrupted business in virtually every industry. As the world settles into the new normal, small businesses closed due to quarantine must navigate many considerations as they try to plan a path back to work. Most don’t have the luxury of time—bills are due, employees are anxious and available savings, if any, are dwindling. Small businesses are weighing two main considerations. First, how soon can they reopen? Second, when they do reopen, how can they ensure the safety of employees and customers? The stakes are high, as the question of liability looms in the background—will the business be liable if an employee or customer contracts COVID-19 on the premises?
While we can’t address every relevant concern that service industry employers should weigh when developing a reopening strategy, we can address some of the main factors that can help minimize the risk of liability. By thinking about these issues and being proactive in your preparation, you’ll be able to minimize the risks your business faces when returning to work.
When can my business reopen?
You should not reopen if it’s located in a jurisdiction that, at present, has implemented a mandatory order dictating that businesses like yours must be closed. Some businesses have intentionally flouted these rules by trying to establish work-arounds. Don’t do that. Tort liability is generally premised on negligence, which is defined as a failure to exercise the standard of care that a reasonably prudent person in similar circumstances would provide. It can be presumed that a “reasonably prudent person” would obey the law. So, if you open your business in opposition of a legally-mandated closure, you could face not only liability, in the event that a customer or employee contracts COVID-19 on premises, but also prosecution for disobeying the law. The risks aren’t worth it.
If the restrictions that apply to your business have been lifted, then the more protections you can provide for both workers and customers, the sooner you can safely resume business. The Centers for Disease Control (CDC) has created a page of resources to help you when you begin reopening. While it is impossible to eliminate risk completely, you can take proactive measures to anticipate problems before they arise and provide a reasonably safe environment for all concerned.
Now, let’s discuss how you can get back to work as quickly as possible.
How can I safely reopen?
Before reopening, you should, at minimum, have a plan to address the following:
- How to clean and disinfect communal work areas
- How to provide adequate protection for employees and customers
- What to do if an employee or their family member becomes ill
- What are your responsibilities to employees and customers under the Families First Coronavirus Response Act (FFCRA) and related legislation
Any business that reopens should post conspicuous signage on the property establishing clear, mandatory protocols for both employees and customers to follow on issues such as mask-wearing and social distancing.
Cleaning and disinfecting communal work areas
You will need to clean and disinfect public spaces on a daily basis and high-touch areas more frequently. The CDC has published comprehensive guidance and a list of best practices to follow. Remember that in addition to a daily deep-clean, frequently-touched areas such as doorknobs, handles, light switches, hand railings, faucets and credit card machines should be disinfected routinely throughout the day.
Protecting employees and customers
The Occupational Safety and Health Administration (OSHA) requires that employers comply with existing health and safety standards and regulations, and has released non-binding guidance addressing COVID-19. That said, OSHA also has a “General Duty Clause” that requires employers to “provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm.” It would be hard to read that clause to exclude the known risks from COVID-19.
So how should service industry employers like you respond to these concerns? At minimum, take the following precautions to be safe:
- Provide all employees with personal protective equipment (PPE), the nature and extent of which will depend on the individual employee’s job duties and exposure to customers or vendors.
- Train employees how to properly put on, use, remove and dispose of PPE.
- Develop policies for employee use of their own PPE, when and how PPE will be cleaned and reused and what to do if an employee refuses to use PPE.
- Reconfigure work spaces to allow for social distancing and proper ventilation. For restaurants, this includes rearranging tables so that diners are at least six feet apart and employees can move freely among tables while remaining at least six feet from patrons.
- Determine whether to implement a screening process when employees enter the workplace, such as taking each employee’s temperature.
- Enforce a rigid sanitation regime, including routine cleaning and disinfecting of surfaces, mandatory handwashing (before, during and after duty), mandatory PPE and mandatory social distancing.
- Stagger employee work schedules if possible to limit the number of employees on premises at any one time.
To ensure comprehension and compliance—and to aid in legal defense in the event of litigation—you should also develop or update written policies addressing these concerns and mandating compliance with COVID-19 sanitation requirements. Make sure to train employees on the new measures and require employees to sign forms indicating that they have received the necessary training.
What to do if an employee contracts COVID-19
You need to require employees to report if they or a co-habitant have been experiencing symptoms, diagnosed with, or have been in close contact with anyone experiencing symptoms or diagnosed with COVID-19. You should then notify the rest of your workforce (especially those who may have had contact with the employee in question) but should not disclose the employee’s name without express written authorization. You should then require that the employee stay home for a minimum of 14 days.
Obligations under the Families First Coronavirus Response Act (FFCRA)
Employers of less than 500 employees have numerous obligations under FFCRA, which became effective April 1, 2020. Some of these obligations include mandatory paid sick leave for employees affected by COVID-19. The federal Department of Labor (DOL) has summarized FFCRA’s requirements for employers and created a list of frequently asked questions. The IRS has provided answers to FAQs regarding FFCRA as well. Some employment lawyers have also provided helpful guidance on the scope of FFCRA.
You should review the requirements of the FFRCA before your employees return to work. Be sure to factor those requirements into any written policies developed for employees in response to the pandemic.
Liability and insurance concerns
There are myriad issues posed by COVID-19 with respect to potential liability of employers. You can find articles with helpful anecdotal consideration of some of these issues. That said, there is no substitute for the advice of counsel. If you are uncertain about how applicable certain legal requirements are to your business, the scope of your insurance coverage or the liability risks that you may face, we recommend you consult with an attorney who can help you interpret any contractual provisions and applicable laws that may affect you. This is especially true because new laws passed by Congress in response to COVID-19 have not had the opportunity to be vetted and interpreted by courts—so the scope and parameters of their applicability may, in some cases, be unsettled. Getting the advice of counsel can help insulate you from liability if you’re faced with litigation.
With respect to insurance, you should closely examine the scope of your coverage of any applicable policies as they come up for renewal. You should be especially mindful of what your insurance policies do and do not cover. This includes reviewing general commercial liability provisions and how they might apply to individuals, whether employees or customers, who contract COVID-19 at your business. It may be necessary to purchase additional insurance or to increase your minimum coverage to account for the risk.
Though these are confusing and uncertain times, you can still prepare and be proactive to limit your risk as much as possible. Consider and implement preventive measures now to help steady your business in otherwise uncharted waters, so you can better care for the needs of your employees and customers.
Stay informed, be proactive and prepare to adjust quickly to new developments as they unfold. While the COVID-19 pandemic is both tragic and revolutionary, it can also be an opportunity for reinvention and renewal for you.
About the AuthorMore Content by Tom Quinn