COVID-19 Re-Opening Considerations, Part 4: Understanding the Risk of Re-Opening

Just a few weeks ago, the trend line showed that the infection, hospitalization and death rates were moving markedly downward.  States across the country were eager to re-open businesses and ramp the economy back up.  Now, we are in the midst of a retrenching of our positions, hunkering back down somewhere between a state of semi-open and shuttering of “non-essential” businesses.  As governmental leaders and healthcare officials navigate the political and health implications of the current moment, those businesses that remain open and their employees are struggling with the uncertainties presented by returning to the workplace.

Unfortunately, the reality of the situation is that there is no “right” answer; rather, it is simply a matter of understanding the risks of re-opening and deciding how best to address them.  In this final blog of the COVID-19 Re-Opening series, I take a look at those risks and present suggestions as to how to meet them head on.

RISK #1:  Transmission

Whether you want to acknowledge this truth, there is no escaping it:  your business cannot guarantee that an employee, vendor, customer or visitor will not contract COVID-19.  You have no control over who may contract the virus, so you may as well be honest about it.  Anyone coming into your place of business must be informed of the risk of contracting COVID-19, as well as your efforts to minimize that risk through a thoughtful and site specific re-opening plan.  In this regard, straightforward communications should be prominently displayed throughout your place of business so that anyone coming into the space can read, understand and accept the risk(s) presented by their choice to enter.  These communications may include:

●  Current, applicable local or state health orders;

●  Current guidance regarding measures that one can take to minimize transmission (e.g., wearing a mask, social distancing, frequent handwashing, etc.) issued by the CDC, OSHA and/or state and local officials.  The CDC, in particular, has many guidance documents for industry-specific businesses, and it has also prepared the Resuming Business Toolkit that can contains a visual guidance overview that can be printed out for display (see page 17 of the Toolkit), as well as a visual guidance document regarding face coverings. (Scroll to the bottom of the webpage and click to view and print it in a one-page pdf document.)

●  An express warning that while your business is making commercially reasonable efforts to minimize the risk of transmission, no express or implied promise that the risk of transmission has been eliminated can be made.  Anyone entering your business must be told that they do so at their own risk, and if they are unwilling to accept that risk, they must not enter your business.

●  Clear directions about what employees, visitors and customers must do to minimize their risk of transmission to themselves and others while in your place of business.  These directions are not suggestions.  They are mandates for acceptable behavior and actions.  For instance, it should not be left to anyone’s discretion about whether a mask is to be worn while on the premises.  This is not a political decision – it is an absolute requirement to minimize the risk of transmission that must be followed by all who enter your business.

Risk #2:  Gross Negligence, Reckless Conduct or Intentional Acts

You may have either heard of or seen some businesses requiring that people sign waivers to minimize the risk of liability including a company’s own negligence.  Waivers are commonly accepted for inherently dangerous activities (ex. bungee jumping operators, river guiding companies, rock climbing guides, etc.).  In California, liability waivers are generally enforceable if the release is clear and explicitly worded to apprise one of the risks presented and the parties’ intent in entering into the liability waiver, the scope of the release is reasonably related to the purpose for which the release is given (i.e., it covers “ordinary” negligence, which is the failure to use reasonable care to prevent harm to oneself or to others), and the release does not otherwise violate public policy.  See Madison v. Superior Court, (1988) 203 Cal.App.3d 589.

However, that does not mean that a business can throw all care to the wind.  Most states will not uphold waivers as a shield to liability resulting from gross negligence (i.e., lack of any care or extreme departure from what a reasonably careful person would do in the same or similar circumstances), reckless conduct, or intentional acts.  More importantly, as no court has considered whether a COVID-19 liability waiver is enforceable, it is not clear whether courts will enforce such waivers in the context of a COVID-19-related personal injury claim.  It is quite possible, though, that how a business conducted its operations in light of the risks associated with the pandemic could be determinative.

By way of analogy, consider that the Iowa, Kansas, Louisiana, Massachusetts, North Carolina, Oklahoma, and Wyoming have all recently passed legislation to allow for immunity from civil liability for COVID-19 claims provided that the particular business was acting pursuant to and in substantial compliance with applicable public health directives.  While it is beyond the scope of this blog post to analyze these statutes in detail, suffice it say, no legislature has immunized businesses from gross negligence, reckless conduct or intentional acts.  Good-faith and earnest efforts to comply with federal, state and/or local public health regulations and/or guidance serves as the baseline for any business to obtain liability protection.

Risk #3:  Shifting Landscape

As is now abundantly clear, what is understood about COVID-19 is constantly changing, as are the governmental orders, directives and/or guidance being issued in response to this pandemic.  At times, this information may be opposite of what was previously stated.  Early in the United States’ response to the pandemic threat, wearing masks was not recommended.  Now, wearing masks is encouraged and, in some states, required.  Staying on top of the near-constant stream of information is challenging for everyone, particularly businesses who are managing the risks of re-opening with the real economic harm of remaining closed or only partially open.  Even so, prudent businesses will task a group of individuals with the responsibility of monitoring applicable government and regulatory agencies to remain in compliance with the latest laws, regulations and/or guidance for safe business operations.  Businesses should also ensure that employees are routinely educated on the latest developments as well as the necessary operating protocols to achieve a healthy and safe workplace.  As the saying goes, knowledge is power.

Risk #4:  Employees

It is not an understatement to say that no business was fully prepared to address the challenges presented by this pandemic.  These challenges – such as, working remotely, workplace safety, and balancing the health risks with economic impacts – are not addressed in the abstract, either.  They are encountered and managed by a business’ employees on a daily basis.  Some employees may be fearful to return to the workplace, others may have no choice because their positions may not be ones that can be done remotely, while still others may be worn down by the juggling of caring for family and performing their job functions.  Businesses must be prepared to deal with both the physical and mental health implications of the moment.  Increased absenteeism, demoralization, anxiety, and potential employee-driven lawsuits are real threats to the ongoing operations of businesses in the COVID-19 landscape.

With regard to employees’ mental health, the CDC has provided helpful guidance  for employees to manage the stress of working in this pandemic, as well as suggestions for building resilience and getting help, if necessary.  Employers should direct their employees to this guidance and create an environment where employees feel comfortable seeking help coping with job stressors.

With regarding to employees’ physical health, lawsuit filings from across the country indicate that business are facing exposure to claims predicated on the Family and Medical Leave Act and the Americans with Disability Act.  The claims generally arise from an alleged failure to grant leave or otherwise provide reasonable accommodation such as allowing an employee to continue working from home.  Other claims being brought are predicated on alleged failures to address worker safety or purported wage and hour violations relating to overtime and/or additional time incurred due to pandemic conditions.

While it is beyond the scope of this post to analyze the particular facts of these lawsuits, a general takeaway can be stated:  employees are both a business’ greatest asset and liability.  Employees are aware of their rights, and to the extent that those rights and – in particular, workplace safety – may be ignored or taken for granted, employees are willing to pursue litigation.  Employers should regularly check in with their employees to address then-existing working conditions, safety procedures and/or concerns, and the latest applicable COVID-19 guidance.  These check-ins should be done in a manner such that employees know that they are encouraged to voice their concerns, that their concerns will be taken seriously, and that everyone is part of the business solutions to the challenges presented COVID-19.  Open communication without fear of retribution in any way will pay dividends in improving employee morale and commitment to working through these challenges, and – to the extent that difficult decisions must be made regarding headcount – employees may be in a better position to understand and accept those decisions.  Beyond that, the prudent employer will want to be in tune with its employees to meaningfully address, to the extent reasonably possible, issues such as employee anxiety, stress or burnout as they arise.

In closing, everyone realizes that businesses must re-open to remain in business.  Operating to generate revenue and operating to maximize the health and safety of employees, vendors and customers do not have to be competing interests.  As has been discussed in this blog series, a thoughtful approach to address these interests is a must-have, not a “nice to have” perspective.  Businesses must educate themselves on the latest health data and governmental/regulatory directives and guidance, they must conduct thorough analyses of their operations to understand the risks and opportunities of re-opening their workplaces, and they must act prudently to minimize risk to maximum extent possible.