Reopening requires careful legal planning

Legal considerations must be your number one priority when planning to reopen. There will be no second chances to get reopening right. Get one reopening step wrong and you may spend years litigating what you should or should not have done. Or worse, your organization may fail, close, or go bankrupt. Workers or customers may get sick or die.

Depending on what industry and what state you are in, you’ll have to implement new safety and social distancing guidelines. But when and how to reopen is a state-by-state decision, complicating logistics. Guidance is available. It comes from the White House, the CDC, OSHA, and the EEOC. State and local health departments and agencies also play a role.

Already, the White House has issued very general guidelines for when states should invite employers to reopen. The guidance leaves up to governors whether to take a state-wide or county-by-county approach. Some governors have chosen to follow the guidance, which includes benchmarks for falling COVID-19 infections before opening. Others have not. Employers will have to check with their states for specific opening dates. Here’s a running list that’s regularly updated.

Here’s a breakdown of what to include in your reopening plan as you prepare:

CDC guidance on reopening

The Centers for Disease Control have historically been at the forefront of guiding the U.S. through pandemics and health emergencies. This time is no different. Working with the White House, it is issuing both general and industry-specific guidelines on reopening safely.

There are two components to the CDC’s guidance. First, it prepared with detailed suggestions for when and how to open. The final guidance includes 60 pages of specific provisions for states, schools, industries, and employers. Second, the CDC released a series of one-page flow charts, including one for employers. As the starting point, the employer should review the draft guidance, especially the vulnerable worker provisions to guide their reopening in addition to industry-specific guidance. Then they should review the business flow chart to see if they missed any steps in reopening. Here are some of the provisions:

  • Determine how many vulnerable workers you have. These workers include those aged 65 and older and those with underlying medical conditions.
  • Medical conditions that put vulnerable workers at greater risk for COVID-19 complications and serious illness include chronic lung disease, asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, chronic kidney disease that requires dialysis and liver disease.
  • Employers should not make unnecessary medical inquiries (since these may violate the Americans with Disabilities Act) or age inquiries (since this may violate the Age Discrimination in Employment Act).
  • Employers can encourage employees to self-identify as vulnerable workers.
  • Reduce vulnerable workers’ exposure risk to COVID-19 by following both CDC and OSHA guidance for reducing workplace exposure for all employees. In other words, it’s not enough to protect just the vulnerable. You should protect everyone to reduce the overall risk to your workplace.
  • Work with local health officials, state, and local officials to determine risk reduction based on local COVIC-19 community transmission rates and health care system capacities.
  • Protect vulnerable workers by minimizing their contact with customers and other employees. For example, you may be able to shift duties – if the vulnerable worker agrees – to lower risk tasks like restocking shelves rather than running the register.
  • Allow telework whenever possible for all employees, including vulnerable workers.
  • Make sure that any other entity that shares the workspace also follows all safety guidance.
  • Reduce or eliminate employee travel from higher virus transmission areas to lower transmission areas. Not every state, county or city will reopen at the same time.

Phased reopening

The CDC and most states are adopting a phased re-opening approach based loosely on meeting certain benchmarks. The details differ but the overall scheme is one of:

  • Monitoring new infections;
  • Testing and isolating new cases through contact tracing and isolation; and
  • Determining whether local or regional medical facilities can meet any anticipated infection surge.

Here’s what the CDC sees as a staged reopening:

  • Phase 1: A business may reopen on condition it can ensure strict social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers. During this phase, employers should instruct vulnerable workers to shelter in place rather than return to work. But remember that ordering older or disabled workers to go home may violate the ADA and the ADEA. Consult counsel before ordering vulnerable workers home.
  • Phase 2: Reopen only if the business can ensure moderate social distancing, proper cleaning, and disinfecting and protection of their workers and customers. The CDC still recommends that during this phase, vulnerable workers still stay home.
  • Phase 3: Reopen only if the business can ensure limited social distancing, proper cleaning, and disinfecting requirements and protection of their workers and customers. At this phase, vulnerable workers can return to work.

Specific recommendations for office settings

The CDC has also issued some very specific guidance for creating safe office settings. These focus on maintaining social distancing and sanitizing the workplace as well as making scheduling modifications to minimize contact. Among the safety measures are changing the office layout to make sure all workers remain at least six feet apart. During Phase 1, all communal spaces like break rooms should be closed. In later stages, access should be staggered with disinfection between uses.

Other recommendations include reducing or eliminating group meetings. Video and teleconference calls are safer. There should be strict limits on the number of people who meet in person. During Phase 1, no more than 10 people should gather, all six feet apart. During Phase 2, that may be raised to 50 participants, six feet apart. In addition, during Phase 1 you should have no non-essential visitors, volunteers, or intermingling of external groups.

Telework; According to the CDC, telework when possible is the preferred option through all reopening phases. As you plan to reopen, assess your current telework arrangements. If you sent employees home during the initial almost universal shelter-at-home phases, review their productivity. You may also want to survey those new teleworks to see whether they preferred it to coming into the office. Keeping employees working from home when possible remains the best way to prevent infection. And for those workers who like the arrangement, you may want to continue it.

Following state guidance on reopening

The federal government has not mandated any specific terms of reopening. Instead, they have deferred to each state’s government on when and how to reopen. Employers planning their reopening must follow their state’s rules. Some states have essentially said that they will look to the CDC guidance (above) as the basis for their own. That guidance remains the best starting point for employers in all states.

Here’s a sampling of state-specific guidance on reopening:

Pennsylvania: The Commonwealth of Pennsylvania began its state-wide lockdown to control COVID-19’s spread county-by-county based on the number of positive tests. On March 16, it ordered all non-essential workers to remain at home. It then issued a list of essential businesses that were allowed to operate despite the shut-down. A waiver program allowed some businesses to request an exemption.

Pennsylvania’s reopening plan is being phased in, using a color-coded county-by-county designation. Red means the stay at home order remains in place. Yellow means a gradual reopening. Green is the final phase when most restrictions will be lifted entirely. All businesses will then be required to follow both the CDC and Pennsylvania Department of Health COVID-19 guidance. Moving from one color to the next requires a drop in the number of positive tests over a 2-week period. That drop must be to fewer than 50 new cases per 100,000 residents on a county-by-county basis. Already, You can view Pennsylvania’s complete reopening plan here.

Georgia: The state of Georgia was the first state to announce reopening a wide variety of businesses. On April 24, it allowed gyms, hair salons, barbershops, tattoo parlors, bowling alleys, and nail salons to reopen. Restaurants followed a few days later. Businesses must follow social distancing guidance. Specific requirements, depending on the type of business entity, can be found here.

California: The state of California has chosen a four-stage reopening plan. Stage One includes implementing strict guidelines to protect essential workers. Stage Two focuses on how employers can reopen generally lower risk businesses. Strategies include providing curbside pickups for retailers and reopening manufacturing and logistics facilities. Stage Three includes reopening movie theaters, hotels, religious services, and personal services. Finally, during Phase Four, concert, sports and convention venues may reopen. As in Pennsylvania, California requires specific targets to be reached before moving from one phase to another. These are:

  • The ability to monitor and protect our communities through testing, contact tracing, isolating, and supporting those who are positive or exposed;
  • The ability to prevent infection in people who are at risk for more severe COVID-19;
  • The ability of the hospital and health systems to handle surges;
  • The ability to develop therapeutics to meet the demand;
  • The ability for businesses, schools, and child care facilities to support physical distancing; and
  • The ability to determine when to reinstitute certain measures, such as the stay-at-home orders, if necessary.

Your reopening plan should consider potential liability.

For example, in some states, businesses have threatened to reopen before their state’s order is lifted. This may trigger loss of occupancy permits, liquor and other licenses, being barred from contracting with the state and other sanctions. It may also trigger the loss of liability insurance coverage. Plus, it opens businesses up for litigation should customers or workers become ill with COVID-19. Make sure your attorneys sign off on your reopening plans.