How to Develop a Reopening Strategy That Avoids Liability
States have begun to lift measures that ordered Americans to stay home and businesses to close in response to the COVID-19 pandemic. While this is a welcome relief for many small business owners, reopening doesn't mean it will be a return to business as usual.
Every small business owner will need a reopening strategy that meets state and local requirements, keeps customers and employees safe, and minimizes liability.
If you are a small business owner, this article will help you do just that by outlining issues that need to be addressed, including issues involving state and local law, health organization guidelines, employment law, contract law, and insurance law, as well as ancillary issues involving tort liability and privacy law.
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Here are the five steps to take before reopening:
Step One: Know State and Local Laws
It's extremely important to understand what is being required of your business under state and local law in order to reopen. Many states are only permitting businesses to reopen in phases and after certain conditions have been met. Not only can expensive fines be levied against business owners who do not comply, but business owners who do not follow the law also expose themselves to lawsuits.
Look to state and local government websites for guidance on reopening. Many states have issued requirements such as:
- Limiting occupant capacity in stores, restaurants, and bars
- Setting social distancing parameters
- Requiring frequent hand washing (for both workers and customers)
- Revising store layouts to allow for social distancing
- Establishing effective cleaning practices
- Submitting a preparedness plan to the state for review
- Requiring workers to wear personal protective equipment (PPE) such as face masks
Following state and local law will help your business keep employees and customers safe as well as limit liability risks, including tort liability in cases involving customers or employees who say they were made ill at your place of business.
Step Two: Review Health Organization Guidelines
Multiple health and safety organizations have provided guidance to help business owners reopen safely:
- Centers for Disease Control and Prevention (CDC): The CDC has extensive guidance for businesses and workplaces as they plan, prepare, and respond to COVID-19, including a tool that helps business owners determine if they are ready to reopen, and a cleaning and disinfecting guide.
- World Health Organization (WHO): The WHO has issued considerations for public health and social measures in the workplace in the context of COVID-19. The downloadable document outlines a workplace risk assessment for work-related exposure to COVID-19 and measures that can be taken in workplaces with different risk levels, in addition to measures that can be taken in all workplaces.
- Occupational Safety and Health Administration (OSHA): OSHA has issued recommendations on keeping workers safe in the time of COVID-19. OSHA states that the guidance does not create new legal standards, but it does remind employers of existing safety and health regulations — such as the General Duty Clause that requires employers to provide employees with a workplace free from recognized hazards likely to cause death or serious bodily harm — within the context of COVID-19.
In many cases, businesses are not legally required to follow the guidelines that have been released by these health organizations. However, doing so can significantly reduce a business' exposure to liability and, just as importantly, can help keep customers and employees safe.
Step Three: Consider Employment Law Issues
If you have employees, you probably have a lot of questions about bringing them back safely and also protecting your business from a lawsuit. Here are some of the most common employment law issues that small business owners need to consider:
- How to keep work environments safe for employees, including high-risk employees
- Whether employees should use masks or PPE on the job
- What to include in a policy for dealing with COVID-19 among employees or their families
- The legalities of testing employees for COVID-19 such as through temperature checks or testing
- Whether work-related or personal travel restrictions are needed for employees
- How unemployment works for employees who choose not to come back to work
Perhaps you are bringing employees back from unemployment or furlough, or maybe you are allowing employees to come back into the office after working remotely. In any case, the main thing to do to keep employees safe and avoid liability is to closely follow laws and guidelines.
Additionally, be sure to update your employee handbook with any changes to policies so that employees are kept aware. Be consistent in whatever polices you put in place to avoid violating anti-discrimination laws, and be conscious of employees' privacy rights.
For individualized advice about laws and guidance, contact an employment law attorney in your area.
Step Four: Revisit Business Contracts and Insurance Policies
The COVID-19 outbreak significantly affected business operations in many industries across the globe, and many resulting contract disputes are far from being resolved.
This might not be the last time certain aspects of business come to a screeching halt because of a pandemic, so it's a good idea to revisit your contracts and maybe consider adding detail to "force majeure" clauses to make sure they are protecting your business in times like these.
Another complication in the wake of COVID-19 is business insurance coverage. If you aren't already looking at getting insurance coverage on business losses stemming from COVID-19 disruptions, be sure to look closely at your policy when it comes time for renewal to understand what your privacy does and does not cover.
For example, are losses due to business interruptions caused by future pandemics covered? What about tort liability claims brought by customers who say they were infected at your business?
Step Five: Get an Attorney's Help
Owning a business is hard enough in normal times, but right now the pressure on business owners is higher than ever. You may decide that you need help creating your business' reopening strategy and making sure that you are in compliance with the law and not exposing your business to liability.
For additional resources for small businesses during COVID-19, please visit Thomson Reuters' COVID-19 Resource Center.
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