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Client Alert: "Necessity is the Mother of Invention" - Checklist of Issues to Consider Before Reopening After COVID-19
By Stephen P. Bond on April 24, 2020
We have witnessed remarkable changes in our everyday lives during the COVID-19 pandemic. Manufacturing businesses are modifying production lines, merchants are providing curbside pickup and delivery services for basic necessities, installing screens separating cashiers and at take-out windows, and even creating one-way traffic aisles in grocery stores – some simple and some more complex changes in our everyday lives which have born out of necessity. As we continue to follow national and state guidelines, while filling multiple roles as business owners, parents, and educators, the overused phrases “new normal” and “changing the narrative” quickly have become tired clichés. In preparing for reopening the economy, however – whatever that may ultimately look like – at least two things will be certain: (1) we need to protect our employees and provide a safe workplace, which will provide confidence for our customers, patrons, and clients that they will be safe, and (2) we must leverage every opportunity, financial and otherwise, to maximize the success of continued operations. This guide provides issues to consider for all business owners in preparing to reopen in this new environment. Please refer to our Coronavirus Resource Page for updates related to this pandemic and the effects it may have on businesses.
(1) Protecting Employees and Providing a Safe Workplace
(A) Stay informed and plan ahead
- A wealth of information is available from the Centers for Disease Control, World Health Organization, Occupational Safety and Health Administration, and local health authority websites, including the following:
This guide summarizes recommendations currently available from the CDC, WHO, OSHA, and local authorities. Note that the following do not express legal opinions, may or may not reflect actual legal requirements, and will also likely be subject to state guidelines which are expected to be issued any day. The CDC advises that businesses are strongly encouraged to coordinate with state and local health officials so timely and accurate information can guide appropriate responses. Local conditions will influence the decisions that public health officials make regarding community-level strategies. We encourage you to contact a Brouse McDowell attorney if you have specific questions as to how the following may/will apply in your specific situation.
(B) Reduce transmission among employees
- Require sick employees to stay home:
o Employees showing symptoms such as a fever, cough, or shortness of breath should notify their supervisor and stay home.
o Employees should not return to work until the criteria to cease self quarantine are met, in consultation with healthcare providers and health departments.
o Employees who are well but who may have a sick family member at home should notify their supervisor and follow CDC recommended precautions.
- Identify where and how workers might be exposed to COVID-19 at work:
o Consider creating designated areas with closable doors that may serve as isolation rooms until potentially sick people can be removed from the worksite.
- Educate employees about how they can reduce the spread of COVID-19:
o Follow the policies and procedures of your employer related to illness, cleaning, and disinfecting, work meetings, and travel.
o Stay home if you are sick, except to get medical care.
o If an employee advises you that they have a sick family member at home, direct the employee to the CDC’s guidance on caring for someone sick at home, which can be found here.
o Wash your hands often with soap and water for at least 20 seconds. Use hand sanitizer with at least 60% alcohol if soap and water are not available.
o Avoid touching your eyes, nose, and mouth with unwashed hands.
o Cover your mouth and nose with a tissue when you cough or sneeze or use the inside of your elbow. Throw used tissues in the trash and immediately wash hands with soap and water for at least 20 seconds. If soap and water are not available, use hand sanitizer containing at least 60% alcohol.
o Clean and disinfect frequently touched objects and surfaces such as workstations, keyboards, telephones, handrails, and doorknobs. Dirty surfaces can be cleaned with soap and water prior to disinfection.
o Avoid using other employees’ phones, desks, offices, or other work tools and equipment, when possible. Clean and disinfect them before and after use.
o Practice social distancing by avoiding large gatherings and maintaining distance (approximately 6 feet or 2 meters) from others when possible.
(C) Maintain healthy business operations
- Identify a workplace coordinator who will be responsible for COVID-19 issues and their impact at the workplace.
- Consider implementing flexible sick leave and supportive policies and practices:
o Ensure that sick leave policies are flexible and consistent with public health guidance and that employees are aware of and understand these policies.
o Maintain flexible policies that permit employees to stay home to care for a sick family member or take care of children due to school and childcare closures. Additional flexibilities might include giving advances on future sick leave and allowing employees to donate sick leave to each other.
o Employers that do not currently offer sick leave to some or all of their employees may want to draft non-punitive “emergency sick leave” policies.
o Employers should not require a positive COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work.
- Review human resources policies and practices to make sure that they are consistent with public health recommendations and with existing state and federal workplace laws.
- Connect employees to employee assistance program resources (if available) and community resources as needed. Employees may need additional social, behavioral, and other services, for example, to cope with the death of a loved one.
- Consider consulting with a Brouse McDowell attorney to review and update your human resources policies and procedures.
(D) Assess your essential functions and the reliance that others and the community have on your services or products
- Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize existing customers, or temporarily suspend some of your operations if needed).
- Identify alternate supply chains for critical goods and services. Some goods and services may be in higher demand or unavailable.
- Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
- Talk with business partners about your response plans. Share best practices with other businesses in your communities (especially those in your supply chain), chambers of commerce, and associations to improve community response efforts.
(E) Determine how you will operate if absenteeism spikes from increases in sick employees, those who stay home to care for sick family members, and those who must stay home to watch their children
- Plan to monitor and respond to absenteeism at the workplace.
- Implement plans to continue your essential business functions in case you experience higher than usual absenteeism.
- Prepare to institute flexible workplace and leave policies.
- Cross-train employees to perform essential functions so the workplace can operate even if key employees are absent.
(F) Practice social distancing
- Social distancing means avoiding large gatherings and maintaining distance (approximately 6 feet or 2 meters) from others when possible (e.g., breakrooms and cafeterias). Strategies that businesses could use include:
o Implementing flexible worksites (e.g., telework)
o Implementing flexible work hours (e.g., staggered shifts)
o Increasing physical space between employees at the worksite
o Increasing physical space between employees and customers (e.g., drive-through, partitions)
o Implementing flexible meeting and travel options (e.g., postpone non-essential meetings or events)
o Downsizing operations
o Delivering services remotely (e.g. phone, video, or web)
o Delivering products through curbside pick-up or delivery
- Employers with more than one business location are encouraged to provide local managers with the authority to take appropriate actions outlined in their COVID-19 response plan based on local conditions.
(G) Maintain a healthy work environment
- Consider improving engineering controls using the building ventilation system. This may include increasing ventilation rates or the percentage of outdoor air that circulates into the system.
- Support respiratory etiquette and hand hygiene for employees, customers, and worksite visitors:
o Provide tissues and no-touch disposal receptacles.
o Provide soap and water in the workplace. If soap and water are not readily available, use alcohol-based hand sanitizer that is at least 60% alcohol. If hands are visibly dirty, soap and water should be chosen over hand sanitizer. Ensure that adequate supplies are maintained.
o Place hand sanitizers in multiple locations to encourage hand hygiene.
o Place posters that encourage hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
o Discourage handshaking – encourage the use of other non-contact methods of greeting.
- Perform routine environmental cleaning and disinfection:
o Routinely clean and disinfect all frequently touched surfaces in the workplace, such as workstations, keyboards, telephones, handrails, and doorknobs.
If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection.
For disinfection, most common EPA-registered household disinfectants should be effective. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method, contact time, etc.).
- Discourage workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible. Clean and disinfect them before and after use.
- Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
- Advise employees before traveling to take additional preparations.
- Take care when attending meetings and gatherings.
- Determine the proper personal protective equipment (PPE), which may be specific to occupations or job tasks and which may change depending on geographic location, updated risk assessments for workers, and information on PPE effectiveness in preventing the spread of COVID-19. Examples of PPE include: gloves, goggles, face shields, face masks, and respiratory protection. OSHA’s PPE standards are applicable in preventing the spread of COVID-19. Guidance on OSHA’s standards may be found here. We recommend contacting a Brouse McDowell attorney for further guidance in determining applicable PPE based upon your situation.
- Develop emergency communication plans, including a forum for answering workers’ concerns and internet-based communications, if feasible.
- Provide workers with up-to-date education and training on COVID-19 risk factors and protective behaviors (e.g., cough etiquette and care of PPE).
- Train workers who need to use protective clothing and equipment on how to put it on, use/wear it, and take it off correctly, including in the context of their current and potential duties. Training material should be easy to understand and available in the appropriate language and literacy level for all workers.
(2) Leveraging Financial and Recovery Opportunities
(A) Economic relief
- Brouse McDowell has issued several client alerts that provide detailed and useful information on economic relief and opportunities made available to date:
- The President is expected to sign a $484 billion stimulus package to further fund the previously enacted CARES Act. Details of the funding include:
o $380 billion in additional funding for small businesses, with $60 billion set aside for underbanked businesses;
o $75 billion for hospitals and $25 billion for disease testing.
- Additional alerts will be added to the forgoing link as details develop.
(B) Insurance coverage updates
- Evaluating your insurance policies and staying abreast of new coverage determinations are essential to successful operations as we emerge from the COVID-19 pandemic.
- All businesses will want to consider the following tips and recent developments affecting coverages under their policies:
o As the economic fallout continues to grow, affected businesses are asking whether their own losses, or damages arising from third-party claims against them, will be covered by their insurance policies. The answer to these questions can be complicated, and will depend on several factors, including: (1) your specific policy language; (2) the specific facts of the claim; and (3) application of the particular jurisdiction’s law.
o While insurers have already begun denying COVID-19 claims, numerous policyholders in Ohio and across the nation have filed lawsuits that will ultimately determine important issues that will impact all claims.
o In addition, several state governments, including Ohio’s General Assembly, and the federal government are considering legislation that would compel insurers to provide coverage for COVID-19 losses.
o Given the evolving legal landscape, policyholders should review their policies carefully and consider whether they should make an insurance claim now in order to protect their rights.
- Brouse McDowell issued several client alerts and conducted webinars that serve as valuable resources in evaluating whether insurance coverage opportunities are available, including:
For over 100 years Brouse McDowell has assisted clients in getting through difficult times and helping them solve problems. We have extensive experience in protecting employees, instilling customer confidence, and leveraging business opportunities. Do not hesitate to reach out to one of our attorneys for an opinion and to help you get through this. Remember, we are all in this together, and it will take the collective effort of each of us to emerge from this temporary crisis.
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