REOPENING FOR BUSINESS DURING A PANDEMIC—Legal and Practical Considerations for Small Business Owners
On April 23, Georgia Governor Kemp issued an executive order titled “Reviving a Healthy Georgia” allowing nail salons, massage therapists, bowling alleys, gyms restaurants, and theaters to open with restrictions. While Georgia is the first state to do so, other states are under economic pressure to follow. This blog post is not intended to weigh in on the public debate on whether reopening is good or bad from a public health perspective. It’s intended to provide small business owners who have to make hard choices with legal and practical considerations they must consider before opening their doors.
Can you be sued for opening your business even though it is legal?
The short answer: maybe. While you can legally open your business, there are other legal risks if you aren’t protecting your workers and your customers. Walmart was sued in Illinois by the family of worker who died of COVID-19. The suit claimed the company failed to enforce measures that would protect the deceased worker from the virus. The family alleged “willful and wanton” misconduct for failing to implement workforce safety measures and accused Walmart of not implementing all of the measures recommended by the Center for Disease Control (CDC) and Occupational Safety and Health Administration (OSHA) for preventing the spread of COVID-19. Smithfield Foods was sued in Missouri after 783 workers tested positive for COVID-19. The Smithfield Foods suit alleged:
- Failure to provide workers with sufficient protective equipment while they worked shoulder to shoulder;
- Insufficient opportunity to wash hands;
- The company discouraged workers from taking sick leave;
- Failure to implement a plan for testing;
- And “Operated in a matter that contributes” to the spread of the virus.
In short, while it is legal to open your business, you can still get sued by employees who contract COVID-19.
What is the Best Way to Protect your Business?
There’s no way to guarantee that your business won’t be sued if you reopen. You can, however, reduce the risk of injuries or litigation by following some basic rules:
- Know the Warning Signs
- Train and Appoint
- Extra Cleaning after Covid-19 Case
Following the outbreak at the Smithfield plant, OSHA and the CDC have issued new guidance for the meat packing industry. These guidelines are helpful for all companies as they plan for a reopening:
- Plant or business lay-out must be altered to physically separate workers;
- Separation must include check-ins, check-out, breaks;
- Consider physical partitions such as plexiglass;
- Limit use of cooling fans;
- Stagger work time to avoid congregations for bathrooms/breakrooms; and
- Appoint a “qualified workplace coordinator.”
The EEOC recently issued guidance that employers can test workers for COVID-19 before they enter the work site without violating the Americans With Disabilities Act.
- EEOC found the test was job related and fit business necessity because infected worker could harm others
- EEOC cautioned employers to make sure test is “accurate and reliable”
- EEOC warned antibodies test may not be enough. Must continue to encourage safe practices such as distancing and hand washing.
- EEOC guidance says employers can require temperature taking of workers and public before entering premises;
- Employers can require workers and visitors to disclose whether they have symptoms or have been exposed to someone with COVID-19;
- Employers may require workers with symptoms to go home; and
Employers should be careful about when and how to release information if a worker or visitor is believed to be infected.
- Employer must tell the workers who worked nearby or came into contact with the ill person.
- Employers cannot generally give information to all workers.
- The information must be distributed only to those with a need to know and de-identified where appropriate to protect the privacy of impacted workers.
The CDC recently updated the list of Warning signs and symptoms for COVID-19. Below is the new list:
- Shortness of Breath; or at least two of the following:
- Repeated Shaking with Chills;
- Muscle Pain;
- Sore Throat;
- New Loss of Taste or Smell.
Remember, the CDC now cautions that your workers may not have visible symptoms of COVID-19 but may still infect co-workers.
- Appoint a workplace safety supervisor.
- CDC guidelines recommend training workers on symptoms, handwashing, social distancing, and cleaning.
- CDC now recommends the use of face “cloths” for anyone out in public.
- CDC does not want general public to use health worker face masks.
- Cloths not a substitute for social distancing.
- Cloths do not protect wearer.
- CDC has now issued a list of products that may carry the label as being effective against COVID-19.
- CDC recommends alcohol-based cleaner (at least 60% alcohol).
- CDC recommends cleaning high use areas (doorknobs, handles, keyboards, phones, toilets, faucets, sinks) at least daily.
- Employer may implement policies requiring workers to clean desk stations multiple times daily.
- Hand sanitizer stations and washing stations.
- Restricted times for seniors after cleaning.
Unfortunately, you can take all the precautions listed here and still learn that your business was visited by someone with Covid-19. However, that does not mean you have to permanently close your business. The CDC issued revised guidelines on April 1st for the timing of disinfection after a suspected/confirmed case of COVID-19.
- Close off areas visited by the ill person.
- Open outside doors and windows and use ventilating fans to increase air circulation.
- Wait 24 hours or as long as practical before beginning cleaning and disinfection.
- If it has been more than 7 days since the person was suspected/confirmed COVID-19 used the facility, additional cleaning and disinfection is not necessary.
Instructions on how to clean and disinfect based on whether cleaning a: hard (non-porous) surface, soft (porous) surface, electronic, or linens, clothing and other items that go in the laundry.
Instructions on personal protective equipment and hand hygiene while cleaning an infected area.
- Gloves and gowns should be compatible with the disinfectant products being used.
- Gloves and gowns should be removed carefully to avoid contamination.
- Clean hands immediately after removing gloves.
- Work with local and state health departments to ensure appropriate local protocols and guidelines for cleaning and disinfection are followed (including identification of new potential cases of COVID-19).
- Educate staff and workers performing cleaning, laundry, and trash pick-up to recognize the symptoms of COVID-19.
- Develop policies for worker protection and provide training to all cleaning staff on site prior to providing cleaning tasks. Training should include when to use PPE (personal protective equipment), what PPE is necessary, how to properly put on and take off PPE, and how to properly dispose of PPE.
- Ensure workers are trained on the hazards of the cleaning chemicals used in the workplace in accordance with OSHA’s Hazard Communication standard.
- Comply with OSHA’s standards on Bloodborne Pathogens, including proper disposal of regulated waste and PPE.
Notes on Disposal:
- Employer shall clean, launder, and dispose of PPE at no cost to the employee.
- When PPE is removed it shall be placed in an appropriately designated area or container for storage, washing, decontamination or disposal.
- Replace disposable (single use) gloves when contaminated or if torn, punctured, or when their ability to function as a barrier is compromised. They shall not be washed or decontaminated for re-use.
What should you do if your business requires employees to travel?
The CDC notes some travel may be essential to provide medical or home care to others–or—”travel that is necessary for a job considered an essential service.” Essential service guidance is found on the Department of Homeland Security Website and was revised April 24. The CDC also notes that travel increases the risk of exposure—especially if you cannot maintain a distance of 6 feet from others. In addition, Covid-19 has been reported in all states and the CDC recommends that people stay home as much as possible, especially if the trip is not essential. Some things to note:
- CDC issued recommendations for the commercial airline industry regarding reporting ill travelers to CDC and managing ill travelers onboard if COVID-19 infection is suspected.
- AirBnB releases new rules instructing hosts on cleaning recommendations based on the CDC’s guidelines as well as requiring at least 24 hours between bookings.
- Major hotel chains announce new guidelines for cleaning and disinfecting rooms and common areas as a means of reassuring travelers.
If you are a restaurant owner, there are more risks and you should do more to protect your patrons, workers, and business. Here are the following protocols you should follow/implement:
- Screen and evaluate workers who exhibit signs of illness (such as fever over 100.4, cough, or shortness of breath);
- Require workers who exhibit signs of illness to not report to work or to seek medical attention;
- Implement teleworking for all possible workers;
- Implement staggered shifts;
- Hold all meetings and conferences virtually (when possible);
- Training on the importance and expectation of increased frequency of handwashing, the use of hand sanitizers (at least 60% alcohol) and provide clear instruction on avoid touching face;
- Require all employees to wear face coverings at all times. Coverings must be cleaned or replaced daily.
- Discourage shared use of phones, desks, officers or other work tools and equipment;
- Stagger workstations to avoid employees standing adjacent to one another;
- Establish limit numbers to reduce contact in employee breakrooms;
- Prohibit handshaking and other unnecessary person to person contact;
- Enforce social distancing of non-cohabitating persons while present on such entity’s leased or owned property;
- Increase physical space between workers and patrons;
- Limit contact between wait staff and patrons;
- Discontinue the use of salad bars and buffets;
- Limit “grab and go” stock coolers to no more than minimum levels;
- Thoroughly detail, clean, and sanitize the entire facility prior to resuming dine-in services regularly.
- Between diners, clean and sanitize table condiments, digital ordering devices, check presenters, self-service areas, tabletops and commonly touched areas. Discard single use items.
- Use rolled silverware and eliminate table presets;
- Remove items from self-service drink, condiment, utensil, and tableware stations and have workers provide such items to patrons;
- Use of disposable paper menus is strongly encouraged. Discard after each patron use. Otherwise, clean and sanitize reusable menus after each use.
- Clean and sanitize restrooms regularly. Ensure adequate supply of soap and paper towels at all times.
- Implement procedures to increase cleaning and sanitizing frequency of surfaces in the back of house. Avoid all food contact surfaces when using disinfectants.
- Check restrooms regularly and clean and sanitize based on frequency of use;
- Update floor plans for common dining areas, redesigning seating arrangements to ensure at least 6 feet of separation. Utilize physical barriers on booth seating when available;
- Limit party size at tables to no more than 6;
- Consider a reservations-only business model or call-ahead seating;
- Remind third-party delivery drivers and any suppliers of your internal distancing requirements;
- Post signage on entrances that no one with a fever or symptoms of COVID-19 is permitted in the facility;
- Physical barriers such as partitions or Plexiglas at registers should be used where practicable;
- Use technological solutions where possible to reduce person to person interaction (mobile ordering, mobile access to menus, text on arrival for eating, and contactless payment options)
- Provide hand sanitizer for use by patrons, including contactless hand sanitizing stations when available;
- Do not allow patrons to congregate in waiting areas or bar areas.
- If possible, use an exit from the facility separate from the entrance.
- Mark ingress/egress to and from restrooms to establish paths that mitigate proximity;
- Where practicable, take-out and curbside pick-up services should be prioritized over dine in services;
- All restaurant or dining room playgrounds shall be closed.
- Georgia Governor’s Executive Order for 2020, including COVID-related Orders
- CDC and OSHA Issue Guidance to Meat Packing Plant
- EEOC Issues Guidance on Employee Testing
- CDC Issues Revised List of COVID-19 Symptoms
- CDC Issues Guidance for Cleaning and Disinfection for Community Facilities
- Georgia Governor Kemp’s Order “Reviving a healthy Georgia in response to COVID-19”
- CDC Recommendations for the Commercial Airline Industry