A Roadmap to Reopening or Resuming Business in the Midst of a Pandemic
April 22, 2020
By John F. Lomax, Jr., Chuck P. Keller, Joe A. Kroeger, Christy D. Joseph, Brian J. Mills, Swen Prior, David P. Williams, and Elizabeth S. Wylie
As businesses begin to contemplate reopening, what will be the expected norms for employees, vendors, customers, and visitors? The Centers for Disease Control (CDC), Occupational Health and Safety Administration (OSHA), and other federal, state, and local agencies have issued guidance to help employers. Plus, essential businesses have learned many lessons in the last two months that may be useful to other businesses that closed, moved to a remote model, or significantly curtailed operations. Another benefit to developing a comprehensive plan is it may aid an organization’s defense against future claims that it did not act prudently in light of the pandemic. The following considerations are not comprehensive but provide a potential roadmap to reopening or resuming business operations.
1. Develop a Plan
OSHA recommends, and at least one state OSHA agency, requires an Infectious Disease Preparedness Plan. That sounds like a significant undertaking, but good planning can help keep a workplace safe, signal confidence to employees, customers, vendors, and visitors, and help avoid a haphazard approach to reopening. Many of the steps outlined below can be part of an employer’s plan.
2. Assess Risks and Plan Accordingly
Every plan will differ based on the community the employer serves, its workforce, the industry in which it operates, and the resources available to it. How widespread is the pandemic in your community? Does your workforce and customer base involve more vulnerable populations? Is certain equipment required in your industry? What steps will encourage employees and customers to return to your place of business? These and many more questions may be addressed as part of the planning process.
3. Determine What Engineering and Administrative Controls Should Be Adopted
One feature of an effective plan is the identification of administrative and engineering controls to help mitigate the hazards or risks associated with the pandemic. Engineering controls are those steps that once implemented do not require individuals to take further action. Administrative controls, on the other hand, include guidance and other safe work practices and require action by an employee. Some examples of each are below:
- Limiting staff and visitors on premises, e.g., rotating staff on shifts, controlled access points;
- Continuing to conduct business remotely or virtually where feasible;
- Closing common spaces, e.g., cafeteria, break rooms;
- Prohibiting or limiting travel;
- See number four below for more safe work practices.
- Installing physical barriers, e.g., sneeze guards, drive-through windows, etc.;
- Increasing ventilation, e.g., opening windows or increasing air exchanges in buildings;
- Rearranging work stations so workers can remain appropriately physically distanced.
4. Implement Safe Work Practices
Employers may have adopted these practices before closing, but the list of recommended work practices has expanded over the last couple of months. Some employers have required essential employees to execute wellness certificates before reporting to work; an employer considering reopening may want to adopt that practice. The below list is not exhaustive, but provides an overview of what may become expected norms:
- Encourage employees and visitors to practice respiratory etiquette and good hand hygiene
- Practice social distancing in the workplace
- Distribute hand sanitizer with at least 60 percent alcohol in common areas and near high-touch points
- Make tissues and disinfectants available along with no-touch trash receptacles
- Discourage sharing or common use of phones, computers, and other equipment
- Educate and train employees on safe work practices
5. Determine Whether You Will Screen, Test and Require Face Coverings
Tackling this issue will be more complex and will require an evaluation of resources, equipment and further training. Temperature screenings have rapidly become common among essential businesses. There are OSHA and Americans with Disabilities Act issues to consider on temperature screening, but in general, the demand for temperature screening is not likely to abate any time soon and there is not an absolute prohibition on screening during a pandemic. Employer testing or requiring negative tests for employees and visitors is likely to be a hot issue. Unfortunately, this may be a resource issue for some time period. Some employers will be better positioned to access or facilitate testing, but for many, they will have to adapt until testing becomes ubiquitous. Face coverings, on the other hand, may be more common. Please note, however, that requiring or permitting respirators which include the scarce N-95 and some dust masks must meet certain OSHA standards and require certain affirmative steps by an employer (such as implementation of written hazard assessments and engineering and administrative controls). Generally, cloth face coverings and surgical masks do not, but the employer may want to consider whether to require them, whether to procure them, and whether those employees using such coverings are cleaning them regularly.
6. Determine How You Will Handle Sick or Potentially Exposed Employees
The CDC has issued guidance that helps address these questions, but those standards might be viewed as minimums and practices will vary by employer, industry and the hazard risk assessment. One critical piece for employers to consider is to actively encourage sick or potentially exposed employees not to come to work. An employer may want to ensure its paid sick leave, attendance and other similar policies are flexible and do not create incentive to report to work when sick. This part of an employer’s plan may also evaluate how to respond upon learning an employee or visitor has tested positive, including protocols for the identification and possible exclusion of any other workers who may have been exposed.
7. Consider Changes in Cleaning and Disinfectant Practices
Before reopening, consider working with your facilities and maintenance team or cleaning vendor. Does the vendor have a plan to ensure sick employees are not reporting to work? What protocols do they recommend? Is the team cleaning and using disinfectants? If so, is the cleaning team using EPA-approved disinfectants that have been identified as effective as the COVID-19 virus?
8. Communicate Plan to Employees and Anticipate Challenges
Once you have devised your plan, consider communicating to employees. Anticipate employees may be anxious and may challenge an employer’s request to return to work. In some situations, employees who believe it is not safe to return may find protection from discharge or discipline under the National Labor Relations Act or OSHA. In other situations, an employee who complains about the effectiveness of an employer’s plan may find protection from adverse employment action under federal and state whistleblower or anti-retaliation statutes.
9. Communicate Plan with Vendors and Other Key Constituencies
In addition to communicating with employees, a business may want to open a dialogue with vendors, particularly those with on-site personnel, and other key constituencies such as customers, clients and regular visitors. No plan will satisfy every individual, but the key may be to signal that the business has considered pertinent guidance from the CDC, OSHA, and other federal, state, and local agencies and deliberately and purposefully developed a reasonable plan. Before reopening, businesses may want to engage its insurance carriers, including workers compensation and commercial general liability carriers. Are the carriers recommending actions that should be part of the business’ plan?
10. Remain Vigilant and Flexible as Standards and Expectations May Evolve
As a business charts a new course, it should continue to monitor guidance from local, state, and federal agencies and consider taking steps to ensure the plan is being followed. An employer may also want to update and adapt its plan when it is prudent to do so. An employer may also find that employees have ideas that are worth implementing too. As such, inviting and listening to the concerns of your employees and other constituencies may help organizations identify and resolve challenges before a dispute emerges.
©2020 Snell & Wilmer L.L.P. All rights reserved. The purpose of this publication is to provide readers with information on current topics of general interest and nothing herein shall be construed to create, offer, or memorialize the existence of an attorney-client relationship. The content should not be considered legal advice or opinion, because it may not apply to the specific facts of a particular matter. As guidance in areas is constantly changing and evolving, you should consider checking for updated guidance, or consult with legal counsel, before making any decisions.