Re-Opening Your Business is Going to be a Process, Not a Ribbon Cutting

In my very first class in college – a political science lecture – the professor stated, “Where you stand depends on where you sit.” In other words, every position is relative to the circumstances presented. That phrase has stayed with me over the years, especially as my profession is based upon the representation of my clients’ various interests. Everything is relative. That includes your desire to re-open your business and/or your goal to get back to work. Here are some considerations that you should keep in mind, though, as you go through this process.

First, the overarching goal of any re-opening plan should be your workforce’s health and safety. It is not a competing interest; it is the primary interest from which everything else must follow. Obviously, no business is immune to economic realities, but generating revenue is only one element. The potential economic harm that could brought about by not focusing on health and safety could reduce revenue because of increased employee absenteeism due to sickness, curtailed operations if the office must be deep cleaned and/or temporarily closed due to illness, and potential liability from claims (governmental and/or individual) that the business was operated in a grossly negligent or reckless manner.

Second, re-opening your business is going to be a process, not a ribbon cutting. The prudent business will create an operational plan outlining the processes and strategies that will be employed to operate safely. This plan must be set forth in writing, distributed to all employees, and acknowledged in writing by each employee that it will be followed.

In preparing such a plan, you should keep several considerations in mind, which I generally outline below. In subsequent blogs, I will go through the various elements in greater detail.

 

Governmental Orders_GuidelinesGovernmental Orders/Guidelines

Regardless of where your business is located, there are likely several potentially applicable orders and/or guidelines that have been issued by local, state and federal governmental officials. Some of these orders/guidelines may be expiring, may get extended, or may be more restrictive than other guidelines. Regardless, you must evaluate which ones apply to your business as they do represent current thinking from governmental authorities regarding how business may safely operate.

 

Regulatory GuidanceRegulatory Guidance

You must stay up to date on guidance from the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC), the United States Department of Labor, and from state and local authorities. Key guidance documents are found on these agencies’ respective COVID-19 specific web pages.

 

Current Health of Biz Ops

Current Health of your Business Operations

Not all businesses are the same, so you must honestly assess the operations of your business when deciding how best to operate going forward. Is working remotely working for your company? Then, it should be encouraged. If working remotely is not feasible for all employees, then who needs to come back, and how is that best accomplished (i.e., staggered work shifts, reconfigured office spaces, PPE needs, childcare issues, etc.)?

 

Health & Safety MeasuresHealth & Safety Measures

You will need to evaluate the health and safety challenges presented by your facilities, employees, and third parties (ex. vendors, customers, deliveries). OSHA, the CDC, and the EEOC have provided various guidance documents for businesses to plan and respond to COVID-19. These documents deal with PPE, social distancing, facility modifications, and employment concerns such as body temperature checks, dealing with illness, and Americans with Disabilities Act compliance in the context of pandemic preparedness. For areas that these guidance documents do not address (ex. the elevator in the lobby of your multi-story office building), you may need to involve a greater group of stakeholders beyond your office (e.g. building management, local health agencies) to develop workable measures.

 

Phased re-entry milestones

Phased Re-Entry Milestones

Just like many governmental orders and/or guidelines have phases, so too should your business plan for re-opening. You should have a clear understanding for the metrics that will need to be achieved to move from one phase to another. A clear framework for returning to more “normalized” operations will help ease the potential anxiety of employees, customers, and business partners as you go along. Additionally, you need to have a clear understanding of what might require you to phase back to an earlier position of safety, should circumstances change.

 

Communication strategyCommunication Strategy

What, how, when and where you communicate about your COVID-19 operation strategy cannot be an afterthought. In the short term, this is crisis management. Over the longer term, your communications will be your business voice of reason, projecting a well-earned level of confidence in the “health” of your business operations.

 

Risk mitigation and managementRisk Mitigation and Management

I previously wrote about the need for liability protection for essential businesses as they operate to provide essential services. However, liability protection will be needed by all businesses as they move to re-open, and waiting for statutory immunity that may never come is not a recommended strategy. In analyzing how you can re-open, you should also consider how things can go wrong. By identifying the risks of your “new normal,” you can work on developing strategies to help avoid and/or handle such risks. As the old saying goes, the best defense is a good offense.

Statutory Liability Protection for Essential Businesses is an Essential Need

Since the inception of the COVID-19 shutdown of the American economy instituted by governmental officials across the United States, food and beverage businesses have been designated as critical infrastructure and essential businesses. Early on, little guidance on how to operate in a pandemic beyond social distancing was provided in conjunction with the hastily prepared governmental orders, leaving many food and beverage businesses to navigate the new operating landscape on their own. As the weeks have worn on, thankfully there have been updates to the initial orders and regulatory guidance that have clarified how to operate.

The most recent guidance update was jointly issued by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) on April 26, 2020. This guidance was issued in response to the outbreak of COVID-19 cases in numerous meat and poultry processing facilities across the country. Recognizing that food processing workers may have a higher risk to potential COVID-19 exposure due to the close proximity in which they work along processing lines and other plant areas, the CDC and OSHA made more definitive recommendations regarding distance between workers, engineering controls (for a quick summary, see graphic below), administrative controls (e.g., social distancing protocols, sick leave policies, handwashing, etc.), the use of personal protective equipment, and employee education about the virus and how to prevent its spread.

"Meat Processing Workstations" provided by the CDC

While such guidance is both necessary and helpful, and with some tailoring can be applied to many essential businesses outside of the meat processing industry, it does not eliminate all risk to the essential workers or to the owners/operators of essential businesses who may be claimed to be liable to those workers should they become ill. Food and beverage businesses, even if they faithfully follow these recommended practices, cannot guarantee that none of their workers will be exposed to or contract COVID-19.

More importantly, governmental leaders view food and beverage businesses to be critical to the protection and maintenance of our food supply.  President Donald Trump just signed an Executive Order to re-open shuttered food processing plants to prevent shortages of pork, chicken and other products. Given the competing demands of meeting our nation’s food supply needs and workplace safety, food and beverage businesses need more protection at this time, and liability protection is a must-have tool while we grapple with this pandemic.

Such liability protection was most notably proposed by Senator Mitch McConnell. Senator McConnell, in response to nervous businesses across the country, indicated his desire to shield companies from liability over pandemic-related lawsuits. As reported by Bloomberg, he publicly worried that asking essential businesses to operate without protection from lawsuits could see those businesses end up in years-long legal claims over their efforts to restart the economy.

Senator McConnell is not alone in sharing this concern. Senate Bill 3007, sponsored by Utah State Senator Kirk Cullimore, was recently passed during a “virtual” special session of the Utah legislature. This bill provides protection from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on a business premises or during an activity managed by the business owner (i.e., claims brought by customers and/or employees).

Proponents of the Utah legislation noted that businesses need assurance that they will not face lawsuits claiming that they exposed employees or customers to COVID-19. This is not an unreasonable fear. Senator Cullimore, who is a practicing attorney, in a subsequent interview regarding the bill noted that he believes that it would be “very difficult to prevail on a negligence claim related to the contracting of COVID-19.” This is likely true given that establishing causation with legal certainty – when, where and how an individual was actually exposed to the virus – would be very difficult, if not impossible. Even so, “as business owners know, whether something may or may not prevail in litigation is not always necessarily the main economic concern,” said Cullimore. “Bringing a claim in and of itself is detrimental to business and an impediment to operating a business.”

Opponents of the Utah legislation openly questioned, however, whether such a measure would be the equivalent of endorsing negligence. It doesn’t have to be. Exceptions to any COVID-19 limitation of liability protections can – and should be – made for gross negligence, fraud or willful misconduct. But deeming certain businesses to be so essential to our communities’ health and safety that they can choose to operate (e.g., food processors, manufacturers, distributors, and retail grocers), and then not shielding them from pandemic-related liability when they do, is a false choice. It is reasonable for a business to argue that it cannot guarantee that a worker will never be exposed to COVID-19. It is also reasonable for a business to dispute that the mere act of working by an employee would establish the requisite causation for any tort claim brought by such employee for being exposed to or contracting COVID-19.

Yet, there must be limitations. Substantial compliance with governmental orders and/or regulatory guidance should be required, of course, and a willful disregard for workplace safety cannot be allowed. If a business is not following recommended governmental and/or regulatory guidance, if it has not made any modifications to its operations to improve worker safety, or if it can be shown that a business willful acted in disregard to applicable law, then the business should not be shielded from potential liability. (In fact, Utah’s law expressly does not preclude liability for willful misconduct or reckless or intentional infliction of harm, nor does it modify workers’ compensation or Utah laws pertaining to workplace safety.)

As statutory liability protections will be heavily negotiated, publicly debated, voted upon, and subject to judicial scrutiny, businesses, employees and customers should be reasonably assured that appropriate liability protections balancing the various concerns will be put into place. But, is it realistic to believe that a federal statute will be quickly put into place, and if so, whether it adequately addresses the concerns of all relevant stakeholders? Senator McConnell has publicly tied such liability protection to any new round of federal stimulus funding, and his Democratic counterparts appear to be resisting this approach for the time being. While it would be preferable for the federal government to establish statutory liability protection regarding COVID-19 exposure claims for essential businesses to prevent a patchwork of state laws of varying levels of protection, essential businesses need protection now. For this reason, I applaud the Utah legislature in passing its liability protection measure, but its broadly worded liability protection language may prove to be too sweeping to serve as a model for legislation covering each state – especially California where it can be argued that we love to do things our own special way.

 

Food Industry Leadership: Two Positive Examples Of Crisis Leadership

Happy Monday! Here’s a welcome relief from the emotional strain of the moment’s new normal of constant COVID-19 health alerts and infection updates: positive crisis leadership.

Xavier Unkovic is the Global President for Amy’s Kitchen. Last week, he shared the following message on LinkedIn to publicly support his team and food industry workers everywhere:

comic of essential food worker working food line
“NOT ALL HEROES WEAR CAPES” by Xavier Unkovic

As we all shelter in place, the idea of food and beverage companies as essential businesses has never been more apparent. Thank you to all the employees of these essential businesses who continue to work so that we may maintain a healthy social distance for ourselves and our communities.

Similarly, hats off to the Albertsons Companies, which is seeking to have its grocery store employees classified as first responders to ensure that they get the personal protection equipment and COVID-19 testing that they need to continue to keep our grocery stores in operation and supplying us with food. To read more about this grocer’s efforts, check out the story published on Business Insider.

The big takeaways here for all businesses and their leaders is that in moments of crisis, large or small, the best approach when all eyes are on you is to remain calm, stay positive, and demonstrate unwavering commitment to your values.

In closing, I leave you with the World War II motivational slogan that has endured a timeless appeal:

Keep Calm and Carry On
KEEP CALM – CARRY ON” by John Cooper is licensed under CC BY 2.0

The attorneys at Wendel Rosen LLP continue to wish you, your families, and your businesses well during this difficult time. We are not just attorneys “at law.” We’re also attorneys at your side, and we continue to help our clients every step of the way.

CDC Issues Interim Guidance for Essential Businesses to Address Workers with Suspected or Confirmed COVID-19 Exposure

On Wednesday, April 8, 2020, the Centers for Disease Control and Prevention (CDC) published new guidelines explaining how employees of essential businesses (or “critical infrastructure,” depending on which of the various local, state or federal orders/directives apply to your business) can return to work if they have been exposed to individuals with COVID-19 or otherwise suspect such exposure.  Exposure means being in a household or having close contact within six (6) feet of an individual with suspected or confirmed COVID-19.  The timeframe for such exposure extends back to forty-eight (48) hours before that individual became symptomatic.

This does not mean, though, that an employee may return to work if he or she is symptomatic or otherwise ill.  Rather, if the employee is displaying no symptoms, he or she may return to work with certain limitations.  According to the CDC guidance, precautions to be taken include:

  • Pre-Screening: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.  If the employee becomes sick during the day, they must be sent home immediately.  Additionally, information on persons who had contact with the ill employee during the time the employee had symptoms (including 48 hours prior to symptoms appearing) should be compiled by the employer. Others at the facility with close contact of the employee during this time are considered exposed.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

These precautions are guidelines; they are not the only measures that essential businesses should consider.  The CDC also recommends other steps that may be taken such as the pilot testing of face masks, working with facility maintenance staff to increase air exchanges in internal spaces, and staggering breaks to minimize potential congestion in break rooms.

Also, bear in mind that the CDC’s updated guidance does not supplant state or local guidance or orders.  For instance, SF Bay Area counties are recommending the use of face coverings when leaving home for essential travel and when persons are working at essential businesses.  Los Angeles Mayor Eric Garcetti has mandated that workers at essential business must wear masks and/or other appropriate face coverings.  Similarly, San Diego County has ordered all grocery store, pharmacy, drug store, convenience store or gas station employees who may have contact with the public to wear a face covering as described in the applicable California Department of Public Health guidance (which is not mandatory for employers, employees or the public).

If you have questions about how this CDC guidance or other state or local orders may apply to your business, the attorneys at Wendel Rosen LLP can assist you.

Shelter-in-Place Update: It’s Essentially Not Business As Usual For Bay Area Essential Businesses

Some businesses and individuals weren’t getting the message.  So, Alameda, Contra Costa, Marin, Santa Clara, San Francisco, and San Mateo counties and the City of Berkeley issued an updated Shelter in Place Order on March 31, 2020 (the “Order”).  This Order supersedes the March 16, 2020 shelter in place order directing all individuals to shelter in place (“Prior Shelter Order”). The Order also clarifies, strengthens, and extends certain terms of the Prior Shelter Order to increase social distancing and reduce person-to-person contact in order to further slow transmission of Novel Coronavirus Disease 2019 (“COVID-19”).

County health officials will be relying on the County’s respective sheriffs and chiefs of police to enforce the Order.  Violation of any provision of the Order constitutes an imminent threat to public health, is deemed a public nuisance, and is punishable by fine, imprisonment, or both.  (Not to mention that workers, as widely reported in the media, at certain businesses like Amazon and Whole Foods have shown that they will very publicly protest conditions that they believe are unsafe – another potential ground for liability.)   The Order will remain in effect until 11:59 pm on May 3, 2020 or until it is extended, rescinded, suspended, or amended in writing.

You can read the full text of the Order here, but for Bay Area food businesses, here’s what you need to know:

  • All Essential Businesses are “strongly encouraged to remain open.” Order, Section 5.
  • You are still an Essential Business, as defined by Section 13(f) of the Order.
  • Your employees are allowed to travel to your facility to perform work activities authorized by the Order, which is defined as an Essential Activity. Order, Section 13(a)(iv) and 13(i).
  • However, “Essential Businesses may only assign those employees who cannot perform their job duties from home to work outside the home.” Order, Section 5.

Food industry businesses, thus, can continue to operate under certain strict restrictions.

First, to the extent your employees can perform their job functions from home, they must do so.  “Businesses that include an Essential Business component at their facilities alongside non-essential components must, to the extent feasible, scale down their operations to the Essential Business component only.”  Order, Section 5.  In other words, if they can, employees must stay home and work from there.

Second, each business must prepare, post and implement a “Social Distancing Protocol” at their facility or facilities, as applicable, by no later than 11:59 pm on April 2, 2020.  Evidence of the protocol must be presented on demand to any authority enforcing the Order.  Order, Section 13(h).  Details regarding what constitutes an appropriate policy are set forth in subsection (h) of the Order, and a form policy is attached as Appendix A to the Order.  Be sure to follow this guidance, which lays out the minimum elements that you need for an appropriate Social Distancing Protocol.  (Go to the Order and scroll down to Appendix A.)

Third, “Social Distancing Requirements” are still in effect.  Maintain a minimum of six feet between employees, require employees to frequently wash their hands with soap and water for at least 20 seconds or use hand sanitizer, and cover coughs and sneezes with tissue, fabric (or, as a last resort, sleeves and elbows).  Above all else, no employee should leave his or her home if they are feeling sick, and certainly not if they have a fever or cough.

Should you have any questions regarding your food business’ preparation of a Social Distancing Protocol or compliance with the Order, Wendel Rosen’s Food and Beverage Practice Group attorneys are available to assist you.

Essential Businesses Can Limit Employee Commuting Stress With “Allow To Pass” Letters and Access Cards

In a prior blog post I discussed how food manufacturers can comply with shelter in place orders and still operate. Federal, state and local shelter in place orders have deemed protection of our food supply to be essential as the nation deals with the effects of the COVID-19 pandemic. Clients are reaching out to us asking for suggestions about how they can alleviate the concerns of their employees who must come in to help with food manufacturing, supply or distribution activities during this time.

While we are not currently aware of any incidences where workers have been stopped for a potential violation of a valid shelter in place order, news reports suggest that enforcement of shelter in place orders may become more of a priority as the United States now has the world’s highest number of reported coronavirus cases. In light of this development, one way essential businesses can help limit employee stress during this time is by supplying them with “allow to pass” letters and/or “access cards” that may be presented should the employee be stopped by legal authorities as they conduct travel to and/or from work.

Allow to pass letters can be created internally by staff, of course, but we recommend that you work with legal counsel to review your template form for accuracy and completeness.  Although there is no federal or state guidance regarding the content of any access card/allow to pass letter, we recommend the following minimum content to be presented on company letterhead:

    • Name of Employer
    • Description of business (ex. “food manufacturer”)
    • Representation that the business is both: 1) an “Essential Business” or part of our nation’s “Critical Infrastructure” with citation to applicable order(s)/guidelines regarding the importance of food production and supply, and 2) complying with recommended safety directives for responsible operation
    • Employee Job Title
    • State that the employee, by virtue of his/her position within the company is absolutely necessary to vital role that the business plays regarding food production and/or supply
    • Conclude with a respectful request to allow the employee to travel to and from work without hindrance

Beyond the allow to pass letter, businesses can also supply their employees with “access cards” that they can carry as extra security.  The access card is a shorthand analog to the allow to pass letter, with the express purpose of being carried by the employee as a backup resource – think of it as the employee’s COVID-19 business card.  Accordingly, it should be a much simpler format, such as the following:


I am an employee of <enter text>.

I am working as an employee for a company that is exempt from the shelter-in-place provisions as defined under “essential infrastructure” per this county’s directives. If you have any questions, please call my supervisor, <enter text>, at this phone #<enter contact number>.


This general format can and should be customized to adhere to each business and the appropriate exception designation from the pertinent shelter-in-place directive.  We also recommend that a company logo be placed on the card.  Further, we reiterate that businesses should contact legal counsel to ensure the accuracy of their allow to pass/access cards before they are issued to employees.

Wendel Rosen LLP is actively assisting our clients during this pressing time, drawing upon our full-service capabilities to assist individuals and businesses on all manner of COVID-19 issues.