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A Few Thoughts on Opening Back up Under COVID

As a business owner, you may have concerns about the legal implications of opening back up during the coronavirus pandemic. Additionally, you may wonder what businesses can do to protect themselves, to the greatest extent possible, from liability these days. Many business owners across the country are struggling to find solutions to address these problems.

First, you must understand that we are truly dealing with a unique situation and that both science and public policy are in constant flux. So, there are no definitive answers to many of the questions you may have. But, hopefully after reviewing this you can feel a little bit better about what your next steps will be. This information was gathered for publication in late May 2020. Please contact us for any further updates.

Key Points:

  1. Follow local county rules on opening (I.e. https://www.smchealth.org/coronavirus)
  2. Remember county health code requirements are the MINIMUM, not the MAXIMUM
  3. Have a complete protocol in place before you open
  4. Gain customer and employee buy-in before you open

When Can My Business Open?

The main question business owners are asking is “Can my business open now?” That question has two subparts.

  1. Do county orders allow the operation?
  2. With the capacity limitations does it make financial sense?

I will leave it to each of you to work on your own financial details. But, with reopening, the state has issued rulings/orders that are important.

According to the most recent statewide guidance, issued on the 25th of last month, each facility that opens MUST:

  1. Perform a detailed risk assessment and implement a site-specific protection plan
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
  3. Implement individual control measures and screenings
  4. Implement disinfecting protocols
  5. Implement physical distancing guidelines

(Source: https://covid19.ca.gov/industry-guidance/)

Reminder: Many of these items are the responsibility of the business. However, some are the responsibility of the individuals going to the business.

Site Specific Plans

Each location will have to try and work through how they are going to limit interaction. How that is accomplished is going to be unique to each facility and each industry. For example, if there are specific guidelines put out by either the state or the local county health office, then follow those. If there is not a clear direction for your industry, then find something similar and explore how that could work. For instance, a gym is more like childcare than a meat packing plant. Additionally, if there are no specific guidelines in place at this time, then use government resources to see what industry is most like yours.

Employee Training and Safety

When it comes to employee training, you will need to outline how COVID spreads. To best accomplish this, reference and review the Centers for Disease Control and Prevention (CDC) website for current best practices according to scientists. This is regularly updated. I would bookmark the CDC’s site and regularly add that to the employee waivers.

In addition, employees who want to come back to work are going to have to acknowledge there is still a risk. They must also acknowledge their obligations when coming back. For example, they have an obligation, first and foremost, to monitor their own health and self-report any symptoms. If anyone in their household has the following symptoms, then they need to stay home.

  • Fever or chills
  • Cough
  • Shortness of breath or difficulty breathing
  • Fatigue
  • Muscle or body aches
  • Headache
  • New loss of taste or smell
  • Sore throat
  • Congestion or runny nose
  • Nausea or vomiting
  • Diarrhea

(SOURCE: https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html)

While the science is constantly evolving, right now, a fever over 100.4 is an automatic no entry for employees and patrons. This is a commonly accepted medical threshold as of the publication of this article.

Implementing Individual Control and Screening

Here is a “best practices” scenario for employees:

  1. Employees come in and immediately wash their hands before touching any surfaces
  2. When the employee comes in, they sign a notice stating that neither they, nor anyone in their household, have had any symptoms identified previously
  3. Their temperature is checked with a “no touch” thermometer and recorded
  4. Masks are worn at all times, when possible

This process would be repeated every time an employee comes onsite.

The following process applies to clients who will be onsite:

  1. Verification before the customer comes onsite that no one in his or her family has any symptoms
  2. Hand washing upon entry
  3. Their temperature is checked with a “no touch” thermometer and recorded
  4. No sharing anything – from gloves to chalk, water bottles, etc.

Some have raised concerns that implementing such active management of screening could enhance liability. However, I do not see this being the case. If there was an outbreak at my client’s facility, then I would feel much better taking a case to the jury knowing that my client had done everything they could to be proactive.

Disinfecting Protocols

While industry specific, some places are more difficult to manage. For example, gyms are very hands on, and you have a lot of people touching a lot of items. My oldest daughter was a gymnast for several years and I know there are literally a thousand “touch points”, vastly different than when it comes to visiting your accountant. Each facility will have to draft their own protocol and ensure that it is being adhered to by the staff.

Additionally, you will also have to publicize this protocol to parents of minors (in cases like “camps”/ Summer programs) to ensure they are aware of what steps each business is taking.

Physical Distancing Guidelines

Again, this is going to be very site specific. What I can say is that in this era, once it is worked out, you need to ensure that it is followed and the customer is shown the guidelines.

Other Resources

Companies should contact their insurance company agent/broker and find out what, if anything, their insurance companies are seeking in terms of updated waivers, liability releases, etc. They may say nothing, or have nothing specific right now, but this is likely to change when you next renew your policy.

Additionally, when it comes to children’s sports, sports governing bodies are likely to push out new releases and requirements over the coming months. They will have a strong influence on how businesses can operate going forward.

Waivers and Releases

Customer service companies will need to let both employees and customers have the opportunity to review safety protocols and sign off on waivers relating to COVID-19. Because of the unprecedented nature of the situation, I think it is important to have these releases IN ADDITION to other releases you need to have customers sign.

CONCLUDING THOUGHTS

This is an ever-changing situation. There are no “clear” and “absolute” protections for business owners. With all of these items, the key is going to be adhering to county and state requirements, along with a buy-in from your clients. Governments are not likely to grant “blanket immunity” to businesses based on current presumptions.

Right now, disclosures need to be large and complete and include guidelines, resources and protocols. Clients need this now. As time goes on, the need for the disclosures will likely decrease, but I would expect that all customers in the services industry will need to review, revise and update their liability waivers.

AND FINALLY. . .

This article was prepared on the most up-to-date information available. Things change. Science advances, discoveries are made and government offices issue new rules. Everyone has to understand changes will continue to occur for a long time. Nothing is “settled law” in this area.

About the Author:

California business lawyer Drew WinghartDrew Winghart has been in practice for over 20 years, the last dozen of them from his office in Redwood City at Winghart Law Group, Inc. The firm practices as general counsel for a number of businesses across a wide range of industries, from manufacturing to retail to contractors and consulting companies. In addition to general business matters, we handle real estate, intellectual property matters and general litigation.  You can reach him at [email protected] or by phone at (650) 332-2994.

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