All businesses have been affected by COVID-19. Most have been ordered to close their doors to the public, and the “all-clear” to reopen their doors can’t come fast enough. If you’re a business owner, this story is all too familiar. When analyzing when and how to reopen, ask yourself these three questions: (1) Am I allowed to reopen? (2) Is it safe to reopen? and (3) Is it smart to reopen?
Am I Allowed to Reopen?
You’ll need to look at your local ordinances or laws to determine if your business is considered essential or is otherwise permitted to open. If you’re not allowed to open, and choose to flout the law by opening your doors regardless, you’ll be at the mercy of your local authorities. In Florida and New York, you run the risk of being arrested and/or fined. In California, the Board of Barbering and Cosmetology threatened disciplinary action against the licensure of any barbershop, salon, or other establishment that opens its doors in defiance of the State’s stay-at-home order. Additionally, if you are opening your business in conflict with the government orders to stay closed, it is likely that your business insurance will deny any claim made during that time due to your business violating the stay-at-home business shutdown. If you’re still waiting for the green light to reopen, stay patient and wait for the government approval to do so. Opening in defiance of government requirements exposes your business to unnecessary legal liabilities and government sanctions, hindering your ability to reopen when permitted.
Is It Safe to Reopen?
If your business is allowed to open, then you must ensure that you’re taking all safety measures and precautions to do so. This varies based on your industry. If you’re in the restaurant or hospitality industry, pay attention to permitted occupancy limits, appropriate disinfectant policies, and newly required restaurant guidelines. These include new employee training, food preparation standards, and restricted table-setting methods.
If you’re in the healthcare business, make sure that your waiting rooms, check-in areas and common areas are constantly being disinfected. Make sure that all clinical employees are changing gloves and masks between caring for each patient. To ensure sufficient time is given to prepare, leave an additional gap of time in between patients to permit for disinfecting, sterilization, and room set-up.
If your workplace is an office, make sure that all desks are situated with sufficient space in between, employees are permitted to wear masks if they desire, stagger work schedules to minimize crowding, and even consider installing sneeze guards or shields. It’s still a great, and smart idea, to schedule as many meetings as possible via telecommunication means. For example, most California courts are still performing nearly all courtroom functions through either telephone meetings or video-conference groups. While us attorneys may miss out on the chance to talk in a more animated means, with flying hand gestures and nodding heads, these technology-based gatherings have proven both efficient and effective.
If you’re in the retail, grocery or service industry, then you’ve already been preparing for these changes. Make sure you have sneeze guards at your service counters. Disinfect all common surfaces, like checkstands, shopping carts, and door handles. Consider implementing limits on the number of customers in the store to avoid unnecessary crowding, as done by Trader Joe’s. Lastly, ensure that staffing levels are appropriate to avoid long customer wait times.
Finally, and in order to protect your business and workplace from any unintended and incidental exposure to COVID-19, some businesses are implementing more restrictive measures for anyone who comes through their doors. Many businesses are taking temperatures of employees as they start their work shifts. While the act may be controversial, California’s Department of Fair Employment and Housing (DFEH) has explained that in a pandemic, this practice is permitted if intended to safeguard the workplace.
Other businesses have implemented requirements for customers. Many retailers and businesses, such as Costco and Nugget Markets, have implemented requirements for all customers to wear a mask if they wish to enter. Again, this has proven controversial for some, but ultimately is a decision that rests in the hands of the business, especially since it’s done in an attempt to safeguard employees and customers.
Is it Smart to Reopen?
The answer to this question can be complicated. If you answer “yes”, you must have answered yes to both questions posed above. If you are permitted to open your business, even with restrictions, and you have the means and ability to ensure a safe workplace and business setting, then you should definitely consider reopening your business. If you are permitted to open, but you don’t have the means to establish and ensure a safe environment for your employees and customers, then it may be wise to keep your doors closed, or business operations restricted, until you are ready. Prematurely opening your doors without
taking the appropriate precautions can expose your business to legal liability from employees, customers, and members of the public who have had their health compromised due to your decisions. While some in Congress may push for coronavirus lawsuit immunity for business, it seems unlikely for immunity to materialize. In order to limit liability and mitigate any potential legal exposure, take every precaution within your means to protect those who enter your business from the upcoming onslaught of COVID-19 lawsuits.
Tawfiq Morrar is an attorney in Elk Grove, California who handles all aspects of business and transactional law, in addition to estate planning services. Mr. Morrar can be reached at (916) 968-7973 or via email at tjmorrar@morrarlaw.com.
