The Legal Obstacles Employers Face In Reopening for Business

The push for non-essential businesses to open is gaining momentum. As American employers contemplate reopening, they will face some legal obstacles. Perhaps the biggest concern is the risk that workers will contract COVID-19 after returning to work.

What liability will businesses have if that occurs?

Easing Social Distancing May Not Let Employers Off the Hook

While more restrictive measures may end soon, employers will have to be sure to follow all CDC, OSHA, and DOL guidelines when they do reopen for business. Failing to take reasonable measures to protect workers could lead to liability. For example, on April 6, the family of a Walmart employee who died from COVID-19 filed a wrongful death claim, alleging the store failed to enforce social distancing guidelines and clean and sterilize the store properly, among other claims.

States Will Vary Their Approach

Businesses will also face different restrictions for opening by state. For example, in California, workers in the food and service industry may need to wear masks. Businesses will need to monitor their state's ongoing restrictions carefully.

DOL to Begin Enforcing Worker COVID-19 Protections

On Monday, April 20, the U.S. Department of Labor announced it would begin enforcing rules enacted to help workers during the COVID-19 pandemic, according to Reuters. Under the Families First Coronavirus Response Act, employers with fewer than 500 employees must provide up to two weeks of paid leave for workers who are quarantined with COVID-19, and up to 12 weeks of partial paid leave for workers who need to care for sick relatives. Employers with over 500 employees are excluded.

So far, the DOL has received hundreds of complaints alleging violations of the FFCRA. The DOL had allowed a grace period for employers. Now that the grace period is ending, employers will need to ensure they are up-to-date and following FFCRA provisions. The end to stay-at-home orders does not end the FFCRA.

Employers Are Seeking Protection

The legal risks of re-opening for business is not lost on employers. That is why corporate lobbying groups are currently urging Congress to pass protective measures to prevent a flood of litigation.

Congressman Mike Johnson told Reuters there would be “probably near-unanimous support" for such protections among Republican legislators, but it is not clear if there is bipartisan agreement on the issue.

Whether or not such legislation passes, it is important for employers to emphasize safety moving forward.

Related Resources

• Employer Liability for Covid-19 Exposure (With Links to Relevant Federal Guides) (FindLaw's COVID-19 Resources)
• Keeping Your Law Firm Operational During an Outbreak (FindLaw's Strategist)
• Reassuring Clients During a Crisis (FindLaw's Strategist)