The global pandemic caused by the novel coronavirus, commonly referred to as COVID-19, has rewritten the social contract between business owners, its employees, and customers. As states reopen their economies, business owners will be presented with a new array of risks—both real and perceived.

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Businesses that reopen in a manner that the public views as reckless may find themselves in a race to the bottom: trading away long-term market favor in exchange for minimal short-term gains. Even scientifically unsubstantiated preventative practices may be necessary if the public perceives them to be necessary.

Businesses that reopen in a responsible manner may not be immune from the risks imposed on post-COVID business owners. For example, the widespread joblessness and financial hardship caused by the COVID-19 lockdowns may have the unfortunate side effect of making consumers even more litigious than normal. Businesses that reopen responsibly and have the appearance of faring well in a recovering economy may, paradoxically, find themselves the target of financially desperate consumers looking for a quick cash grab.

Below are a few of the early considerations and lessons that can be gleaned from businesses that have reopened after being closed due to the coronavirus. This list may be supplemented as more information becomes available. It should be noted, however, that every business is different and will need to tailor its policies and procedures to fit its specific business model. 

Social Distancing:

  • Consider staggering the times when employees return. For example, an employer could start with only first-shift employees returning for the first two weeks and then the second-shift employees returning for the next two weeks.
  • Maintain teleworking and/or flexibility with employees’ schedules.
  • Continue to hold large staff meetings virtually.
  • Rethink holding any in-person events with mass gatherings and consider hosting events virtually or rescheduling.
  • Increase physical space between employees and visitors in the workplace. For example, have a maximum number of individuals who may enter a break room, conference area, or lobby.
  • Place physical markers in high-traffic areas to keep people six feet apart.
  • Place physical barriers to the extent necessary.
  • Rearrange workspaces to permit greater social distancing.
  • Develop protocols for elevator use.
  • Stagger break and lunch times. Plan for longer break times to accommodate social distancing measures.
  • Permit employees to leave the facility during meals and breaks to increase social distancing.
  • Implement clear shields/barriers for employees whose work prevents them from being physically distant from customers/clients, such as cashiers and bank tellers.

Cleaning, Protection & Hygiene

  • Place proper hand-washing protocol posters in all common work areas and in restrooms.
  • Be flexible with employees’ breaks to allow for frequent hand-washing.
  • Include additional sanitation measures for the facility, especially in common areas and for frequently touched surfaces or shared equipment.
  • Require employees to disinfect common surfaces following use as appropriate (for example, in microwaves).
  • Provide hand sanitizer, disinfecting wipes, and proper disposal in all common areas and at workstations where employees cannot leave to wash their hands between interactions with the public.
  • Encourage employees to use masks or approved facial coverings and gloves and provide them if able.
    • If employers permit employees to use their own, provide clear expectations on what is appropriate.
    • In some jurisdictions, masks are required for employees returning to work.
  • Ensure employees are trained on proper use of PPE.
  • Continue to encourage employees to observe infection-control practices, such as regular hand-washing, coughing, and sneezing etiquette.
  • Coordinate with facility maintenance to increase air exchanges in facilities.

 Employee & Visitor Screening

  • Institute safe screening practices for both employees and visitors prior to entrance into the facilities.
    • Place conspicuous messages at entrances prohibited feverish and sick employees and visitors from entering.
    • Be sure these messages are printed in both English and Spanish.
  • Mandate that employees with symptoms stay home from work and follow employer call-in procedures.
  • Implement temperature checks upon entrance in a safe and confidential manner.
  • Be mindful of privacy concerns and any necessary accommodations.
  • Consider suspending or reconfiguring security practices that require touching frequently touched surfaces, such as PIN-entry devices, thumbprint scanners, time clock stations, and sign-in books.

 Policies

  • Review and update attendance, leave-of-absence, Family Medical Leave Act and PTO policies to prepare for COVID-19 absences.
  • Ensure that a policy and procedure is in place for processing Families First Coronavirus Response Act leave requests and recouping available tax credits.
  • Create a policy or procedure for when employees diagnosed with COVID-19 or suspected of having COVID-19 can return to work.
  • Review and update any teleworking and accommodation policies or procedures.
  • Develop and implement procedures to track any positive cases to provide proper notification for those exposed and to prevent further spread.
  • Update procedures for reporting any safety issues.
  • Review time-keeping procedures to ensure they allow for social distancing and adequately recording working time.
  • Ensure employees understand these updated policies.
  • Review and update safety policies and clearly communicate new rules and procedures to employees in writing.
  • Require training on updated safety procedures for employees.
  • Train supervisors on how to monitor compliance with and enforce new rules and procedures.
  • Have employees acknowledge receipt of training, rules and procedures.

 Miscellaneous Considerations

  • Stay aware of continuing restrictions from federal, state, and local public health organizations and remain compliant with public health orders.
  • Develop a strategy for workers who decline to return to work or need additional time off.
  • Consult with counsel about implications under the National Labor Relations Act, the Americans with Disabilities Act, Occupational Health and Safety Act (and state equivalents), labor laws and others employment laws.
  • Employers should be mindful of laws against unemployment fraud. In some circumstances, employees may decline to work because they are earning more benefits on unemployment than in their normal position. Employers should inform state unemployment insurance departments if work is available and the employee refuses to return for an unexcused reason.
  • Be mindful of responsibilities under the Payroll Protection Program and other support programs for keeping employees on the payroll.
  • Prepare to follow the interactive process for accommodation requests under the Americans with Disabilities Act or state equivalent regarding returning to work and/or any of the safety measures.
    • Accommodations may include PPE, remote work, alternative scheduling, alternate work locations, alternate work assignments, increased social distancing, and leaves of absence.
  • Ensure the extra safety precautions do not violate wage and hour laws.
  • Create a plan for when employees may resume business travel.
  • Be mindful of anti-discrimination and anti-retaliation laws when returning employees and addressing safety issues.
  • Prepare a contingency-operation plan to address an increased outbreak or spike in infections as restrictive measures are loosened.
  • Be cognizant of rights and obligations under collective bargaining agreements.
  • Encourage employees to raise questions or concerns and designate a task force member to engage in dialogue with employees.

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Editor’s Note: This article was originally published on Messer Strickler’s blog and is republished here with permission. 


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