Who’s Ready To Go Back To “Normal”? Re-Opening Your Business, Part 3: Business Plans

Whether you agree or not, the pressure to return to more “normalized” operations is upon us.  Federal, state and local leaders are now confronting the sobering impacts of an economy forced into hibernation for nearly a full fiscal quarter.  Employers and employees of every business are contemplating what the steps forward look like.  For essential businesses that have been operating all along, they may be further along in their COVID-19 operational modifications, tweaking what they have been doing to better align with the frequently updated governmental and/or regulatory guidance.  For the remainder of businesses, though, depending on the “phase” that they fall into, these businesses are planning to re-open, whether that start date be days, weeks, or possibly months ahead.  In this blog, I highlight three industries to analyze the State of California’s re-opening guidance to explore the gray areas that nonetheless remain for operating in the “new normal” economy.

The Centers for Disease Control and Prevention (CDC) has prepared its “Resuming Business Toolkit” to “assist employers in slowing the spread of COVID-19 and lowering the impact in their workplace when reintegrating employees into non-healthcare business settings.”  This toolkit contains essential information, including a comprehensive checklist of re-opening considerations, a worker protection tool to identify protective measures that can be taken, printable infographics that can be displayed in the workspace, and links to other informational resources regarding COVID-19.  This toolkit is a great starting point for planning to re-open, and the State of California requires adherence to CDC guidelines as a foundation of its own guidance recommendations. 

The California Department of Public Health (CDPH) and Cal/OSHA have also issued statewide guidance for businesses to follow, if they’re permitted to open per county health rules.  The State regularly updates its County Variance page to show each county’s readiness to move through California’s phased re-opening process.  Generally, there are particular metrics that each county must hit:

●  Stable hospitalizations of COVID individuals on a 7-day average of daily percent change of less than 5% OR no more than 20 COVID hospitalizations on any single day in the past 14 days; and

●  Less than 25 new cases per 100,000 residents in the past 14 days OR less than 8% testing positive in the past 7 days.

For businesses to re-open, though, each business must satisfy certain additional requirements:

●  Perform a detailed risk assessment and implement a site-specific protection plan

●  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

●  Implement individual control measures and screenings

●  Implement disinfecting protocols

●  Implement physical distancing guidelines

Naturally, though, the devil is in the details, and the most challenging aspect of any re-opening process will be the first requirement:  risk assessment and site-specific planning.  Businesses must comply with all Cal/OSHA standards and be prepared to adhere to its guidance as well as guidance from the CDC and the CDPH.  This, of course, is a lot of information to review.  Accordingly, a cross-functional planning team will likely need to be assembled to identify and analyze the risk factors presented by the particular operations of your business. 

Generally, this team should include members from the following areas as they cover all the areas that must be considered as you decide when and how to re-open your business:

While it is beyond the ambitions of this blog post to review either the CDC’s toolkit or the State of California’s plans in granular detail, let’s take a look at three state guidance documents to understand why the guidance is just that – it is a guide, not a complete plan.  A business’ cross-functional planning team must interpret this guidance and customize it to fit the business’ particular operational factors and challenges.

Manufacturing

The manufacturing guidance covers the necessity of a worksite specific plan, employee training about COVID-19 and how to prevent it from spreading, individual control measures and screening, cleaning and disinfecting protocols, and physical distancing guidelines.  This eight-page documents offers helpful advice and examples within each of these main categories.

However, the guidance does not cover the nuances that the various considerations present.  For example, with regard to employee training, have you developed your training program?  Who will be leading the training program?  Will it be an outside service provider to “train the trainer,” followed by reliance on designated employees who are charged with educating the workforce – as often as is required?  Will you be keeping a log of the employees who participate in the training program?  If you intend to rely upon written educational materials, will you require that employees sign a verification that they have read and understand the materials (or, to the extent that they have questions, that they have sought answers to those questions)?

With regard to cleaning and disinfecting protocols, it is recommended that manufacturers “[f]requently disinfect commonly used surfaces, including, doorknobs, toilets, and handwashing facilities.”  Additionally, touchable surfaces should be cleaned “between shifts or between users, whichever is more frequent.” 

Increased sanitation is undoubtedly necessary to promote the health and safety of employees and customers, but who is responsible for this additional cleaning?  Must a business employ an outside cleaning company to be onsite for this purpose, are employees supposed to pick up this additional job duty, or is a combination of using a janitorial service and increasing employee responsibility for cleaning the best approach? Will your plan include regularly scheduled cleaning breaks in which all employees cease their activities and clean the workplace?  Do you plan to create sanitation stations throughout the facility to provide ready access to cleaning supplies necessary to accomplish this task and allow for social distancing in accessing the supplies?  Have you secured, or will you be able to secure, sufficient quantities of cleaning supplies to support this heightened cleaning schedule?

The answers, of course, depend on the particularities of your facility and what strategy works best to ensure that your facility is cleaned effectively.

With regard to delivery drivers, the guidance recommends that employers should provide alternative restroom locations and allow time for delivery drivers to use them.  Examples of “normally accessible restrooms” located along a delivery route include restaurants and coffee shops.  How can an employer provide alternative locations to these formerly acceptable options given that they don’t actually control any outside location nor can an employer guarantee that any particular location will be open and accessible for use by non-employees of the business establishment? What alternatives, then, will your cross-functional team recommend?  Again, it depends.  You must consider the particularities of your drivers’ routes, what businesses may be open, and whether you (and/or your drivers) believe that it is safe to have the drivers utilizing the restroom facilities of other businesses.

Offices

This guidance, too, covers the basics:  creating a worksite specific plan, employee training about COVID-19 and how to prevent it from spreading, individual control measures and screening, cleaning and disinfecting protocols, and physical distancing guidelines.  Let’s examine a few gray areas, though.

For screening, the guidance notes that temperature and/or symptom screenings can be done at the beginning of each shift and when any visitors enter the premises.  As an alternative, employees could also self-screen at home, provided that the employee do so in accordance with CDC guidelines.  Assuming that a business were to opt for self-screening to maximize employees’ medical information privacy, how would the employer ensure that each employee performs the proper and necessary screening each day?  Does the employee need to sign a verification to that effect each time he/she presents at the office?

Additionally, the guidance encourages employers to tell workers who are sick or exhibiting symptoms of COVID-19 to stay home.  This is particularly important given Governor Newsom’s Executive Order N-62-20, which provides that workers who contract the COVID-19 virus between March 19 and July 5, 2020 shall be presumed to have done so at work. Under this presumption, such workers will be eligible for workers’ compensation benefits. For this presumption to apply, the employee must test positive for COVID-19 within 14 days after performing work or be diagnosed with COVID-19 by a licensed physician within 14 days after performing work. If an employee is diagnosed with COVID-19, that diagnosis must be confirmed by further testing within 30 days of the diagnosis.

The Executive Order does provide that the presumption is rebuttable and may be controverted by other evidence. However, the employer bears the burden of proving that the illness did not occur at work. Additionally, if a claim is not rejected within thirty (30) days of its filing, the illness is presumed compensable, and an employer’s ability to rebut that presumption is limited to only that evidence discovered after the 30-day investigative period.

Has your office-specific plan accounted for this Executive Order?  Additionally, while the recommendation to allow for flexibility in sick leave policy is useful for those employees who have objective evidence of illness, how does either the employer or the employee account for asymptomatic situations?  Such individuals could be unknowingly spreading the virus throughout the office, and while the asymptomatic individual should be quarantined at home, neither the employee nor the employer would know that this is required. Also, additional requirements must be considered for vulnerable populations.  Does your office plan account for this sub-group?

Public Transit

This guidance document covers the same general categories noted above.  It also provides links to the CDC’s specific guidelines for:

● Bus Transit Operators

● Rail Transit Operators

● Transit Maintenance Workers

● Transit Station Workers

The State of California now advises that “[p]ublic transit or rail agencies must take reasonable measures to remind the public that they need to use face coverings and avoid directly facing other passengers when physical distancing is difficult.”  While signage can be placed throughout the stations and trains to remind passengers of these considerations, how are public transit agencies supposed to enforce them?  Will there be increased personnel monitoring mask use and/or social distancing, and if so, will they be empowered to take any action to ensure compliance with these safety measures?  What action is allowed?

Additionally, turning back to the rebuttable presumption of workplace injury established by Executive Order N-62-20, should an employer ask its employees to not take public transportation in an effort to limit this potential external source of COVID-19 exposure?  If an employer were to make such a request, should it be required to offer transportation alternatives (ex. paid parking) for employees who opt or are required to commute to the workplace?

The considerations that I raise are neither exhaustive, nor are they intended to suggest that a business cannot safely re-open.  Instead, they are merely to underscore the point that re-opening in an effort to return to “normal” operations is not a realistic goal.  Careful planning is required, and it may take much longer than a business anticipates to develop an effective plan. 

Additionally, as the old saying goes, even “the best laid plans of mice and men often go awry.”  Employers must be prepared to alter their operations as those guidelines, or health conditions change.  Thus, creating a cross-functional team at the outset of your planning is the first step in re-opening, and you will need to rely on this team going forward to routinely evaluate your business plan and make revisions/improvements to it as the plan is implemented.

Published by Bill Acevedo

I am the Chair of Wendel Rosen LLP's Green Business Practice Group, and I am the Co-Chair of my firm's Food and Beverage Group. My practice focuses on manufacturing and food, dietary supplement and cosmetic companies. I provide outside general counsel services to my clients, which include: entity formation, business and legal advice on proposed business transactions, general contract negotiation and drafting, brand and licensing protection, corporate governance, capital raises, and M&A transactions. Additionally, I assist my clients with labeling, advertising, and FDA regulatory compliance matters. In addition to my corporate transactional practice, I handle all manner of business litigation, such as labeling/advertising claims, contractual disputes, trade secret matters, partnership disputes, product liability claims, director and officer liability, and unfair business practices claims.

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