The following article originally appeared in Law 360’s Expert Analysis section on August 14, 2020.
As more and more workplaces physically reopen while COVID-19 remains a significant health concern, business leaders find themselves agonizing over when and how to do so properly—often weighing financial considerations and the need for their services against the potential health implications of being open in such precarious times.
With experts at odds over the right approach, consensus decisions are unlikely, leaving leaders alone to answer some of the most difficult questions of their professional careers.
Are we allowed to open? Just because we can open, does it mean we should open? How do we keep everyone safe? Can we keep COVID out? What happens if COVID gets in? What are the relevant laws and regulations, and is it even possible for us to comply? How do we protect employees who have health conditions that make them especially susceptible to COVID?
While the national conversation is comprised of exactly these topics, they are often addressed in broad, theoretical brushstrokes by reporters and opinion writers who do not have a personal stake in the outcome. The full weight and magnitude of the questions is most apparent to the leaders who must navigate landmines when formulating and implementing answers.
Of course, some businesses are simply staying shuttered while waiting out the COVID storm, but as that wait becomes longer and longer, many other businesses plan to reopen in the not-so-distant future, and yet others have been operating for weeks, and in some cases, months, while doing everything possible to keep employees and customers safe.
Businesses that are planning to reopen soon have the benefit of learning from our collective reopening experience to date. Likewise, businesses that are already open have much more information about operating safely than they had some number of weeks or months ago.
Indeed, while the conversation began with reference to reopening and return-to-work plans, it is time to shift our terminology to safety plans; because the considerations are as relevant to workplaces that have already reopened as they are to those that plan to reopen in the future.
After weeks and months of trial and error, what have we learned? For starters, we now understand that every strong COVID safety plan has three essential components that are meant to achieve three primary goals:
- To keep COVID out of the workplace through appropriate screening, including self-screening conducted from home and formal screening conducted upon arrival to the workplace;
- To limit the spread of COVID in the workplace through occupancy limits, social distancing, proper cleaning and sanitizing, mask-wearing, personal hygiene, and similar safety measures; and
- To react appropriately when a customer or employee has symptoms of COVID or a positive test for COVID, including contact tracing to inform those with whom the infected person was in contact.
There is a saying in human resources that people respect what is inspected. The safety plan is only as strong as its corresponding training and supervision.
Thus, all employees should be trained on the safety plan and receive ongoing training and supervision as the plan evolves. Many employers also have their employees sign an agreement to comply with essential safety policies to confirm that employees fully understand their obligations and critical role in maintaining a safe workplace.
Likewise, customers should also be informed of the expectations for their behavior. Depending on the particular industry and business setting, this may entail formal training, signing a liability waiver and/or agreement to comply with essential safety policies, and receiving appropriate instructions upon entry, often through signage and verbal reinforcement.
While the overarching purpose of every COVID safety plan is the same—to keep customers and employees at minimal risk from COVID—the plans are not one-size-fits-all. The exact details of each plan depend on a combination of: local, state and federal laws, regulations, executive orders, and guidelines; various industry best practices; and the unique features of a particular business.
Many pieces of state and federal guidance are industry-specific. States have varying guidelines and requirements for places of worship, sports facilities, child care centers, restaurants, swimming facilities, schools, medical providers and countless other industries. Similarly, the Centers for Disease Control and Prevention provides different guidance documents for different businesses, with distinct guidance for restaurants and bars, casinos and gaming operations, office buildings, and other types and categories of workplaces.
While compliance with certain state and federal laws and regulations is mandatory, other guidelines are advisory. The CDC's industry-specific documents are often titled, for example, Suggestions for Youth and Summer Camps, with qualifying language saying that businesses should implement recommendations "to the extent possible" and "may consider" certain precautions.
Likewise, the Occupational Safety and Health Administration's guidance on preparing workplaces for COVID explicitly states that it "is not a standard or regulation" and "creates no new legal obligations." Despite the advisory language, the first wave of businesses to reopen have taught us that not following optional guidelines comes with significant risks.
To stay with our example above, the summer camp industry has lost $16 billion as a result of the pandemic, according to the American Camp Association, whose CEO explains that 80% of overnight camps and 40% of day camps did not open this summer. Of the camps that did open, many had no COVID issues thanks to thorough implementation of strong safety plans.
Perhaps not surprisingly, businesses that reopened without issue do not make for attention grabbing news stories, unlike, for example, the subject of the recent New York Times headline, "The Coronavirus Infected Hundreds at a Georgia Summer Camp." Various media outlets were quick to observe that the Georgia camp was not in compliance with all relevant CDC guidelines.
Although the guidelines are advisory and explicitly optional, they are not treated that way when litigated in the media. We have yet to fully understand how they will be treated when litigated in the courts.
While many states and the federal government are in various stages of considering and/or implementing so-called COVID-shield legislation to limit COVID-related lawsuits against businesses for all but intentional or reckless actions, many COVID lawsuits have already been filed. The claims are often based on allegations that a business did not follow relevant guidelines and regulations, with the failure to do so being presented as negligence or worse.
In addition to potential legal consequences stemming from private actions, businesses may also face licensing and other regulatory consequences for lack of compliance. Indeed, state regulatory bodies may be required to shut down businesses that violate COVID safety requirements, and consumers are encouraged to report these types of violations. As a recent Los Angeles Times headline reads, "Is a business near you ignoring COVID guidelines? How you can step in."
The key takeaway is that when a business faces a COVID-related legal issue, whether in the form of a private or government action, the strongest defense is showing that the business followed all relevant laws, regulations and guidelines, whether they are mandatory or advisory and theoretically optional.
What are the relevant laws, regulations and guidelines? As businesses reopen and stay open, they face a web of frequently changing and often-overlapping guidance materials. A complete COVID safety plan is typically based on:
- State and local laws, regulations and executive orders, beginning with relevant guidance about when a particular business is allowed to reopen;
- CDC guidelines, some of which are universally applicable, such as contact tracing strategies, and some of which are industry-specific;
- U.S. Environmental Protection Agency materials, including those regarding appropriate cleaning products and sanitation;
- U.S. Equal Employment Opportunity Commission guidance, including on workplace pandemic preparedness and related materials;
- U.S. Department of Labor guidance and regulations, including guidance regarding paid sick and family leave obligations under the Families First Coronavirus Response Act, which itself should be considered in the reopening plan;
- OSHA guidance, including on preparing workplaces for COVID; and
- White House guidelines for opening up America again.
What simplifies the safety planning is that these materials often cross-reference each other and impose similar and sometimes identical requirements. As a practical matter, many businesses rely on state guidance as the foundation of their plans, and then use the other guidance documents as a sort of checklist to ensure that the safety plan includes all the essential requirements. Where obligations on the same topic differ, which many businesses have found to be surprisingly uncommon, the more stringent obligation should be adopted in the safety plan.
What further simplifies the planning process is that businesses now have access to a veritable library of safety plans online, which were not available when the first wave of business reopened. Of course, much like the classic law school outline that has been passed from one student to the next, these vary in quality and their provenance is often unknown. Nevertheless, taken together, the templates provide a valuable starting point and a helpful overview of best practices.
However, regardless of their quality, each COVID safety plan template is a snapshot in time and must be treated that way. As our medical and scientific knowledge of COVID evolves, the relevant laws and regulations change, and COVID safety plans must keep pace. As we make the relevant updates, we all look toward such a time when the COVID safety plan, by whatever it is known, is a distant memory.
 Notably, an agreement to comply with essential policies is very different from an employee waiver of liability, an instrument which is frowned on by courts for various reasons. By contrast, customer waivers of liability can be useful when properly drafted.
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