Legal Issues for the Vanguard: Business Reopening after the Lockdown
Corporate and M&A
General Corporate Counsel
Labor and Employment
April 29, 2020
By John F. Connolly
With Governor Kemp’s April 23, 2020 Executive Order, Georgia enters the first phase of its business reopening following the COVID-19 Shelter-in-Place Orders. As they consider the steps for reopening, businesses need to consider the various health and safety guidelines from the White House, CDC, OSHA, and state and local governments. With proper planning, care and enforcement, a business can reopen with confidence and look forward to being in the vanguard of getting Georgia back to work.
On April 20th, Georgia Governor Brian Kemp announced that he was going to allow a limited reopening of businesses during the first phase of easing the Shelter-in-Place Order entered on March 14th in response to the COVID-19 virus. As of April 25th, gyms, fitness centers, bowling alleys, barbers, hairdressers, nail salons, and massage therapists are allowed to reopen on a limited basis, followed by movie theaters and in-person dining at restaurants on Monday, April 27th.
These re-openings, however, come with restrictions. In an Executive Order dated April 23, 2020, Governor Kemp issued basic measures to mitigate the exposure and spread of COVID-19 among workers. These include:
- Screening and evaluating workers who exhibit signs of illness;
- Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
- Enhancing sanitation of the workplace;
- Prohibiting gatherings of workers;
- Implementing teleworking and staggered shifts;
- Holding all meetings and conferences virtually, whenever possible;
- Placing notices that encourage hand hygiene;
- Enforcing Social Distancing of non-cohabitating persons while present on such entity’s leased or owned property;
- Increasing physical space between workers and patrons; and
- Suspending the use of Personal Identification Number (“PIN”) pads and other credit card requirements to limit the exchange of cards between patrons and employees where possible.
The Order also includes industry-specific guidelines. For example, measures for restaurant dining rooms include:
- Requiring employees to wear face coverings;
- Discontinuing use of salad bars and buffets;
- Mandating cleaning and sanitizing of tabletops and commonly touched areas between customers;
- Updating floor plans for common dining areas and redesigning seating arrangements to ensure at least six (6) feet of separation between seating;
- Limiting party size at tables to no more than six;
- Prohibiting patrons from congregating in waiting areas or bar areas; and
- Limiting the number of patrons to no more than ten (10) patrons per 500 square feet of public space.
Additional requirements exist for restaurants. The full text of the Governor’s Order with all the relevant regulations for all businesses may be found here: https://gov.georgia.gov/document/2020-executive-order/04232001/download.
In addition to these regulations, there are other challenges that these and other businesses will face as they reopen. One may be convincing workers to return. With safety suddenly a high-value commodity, companies will need to clearly communicate to their employees what steps they have taken to reopen safely. Employers should consider providing hand sanitizer, and per the Governor’s guidelines, require employees to self-monitor their temperatures, enforce social distancing, and mandate hand washing, cleaning, and sanitizing. Employers should also consider whether to provide gloves and face coverings, and even need to consider whether to implement disciplinary action if policies are not followed. The CDC’s guidance for employers may be found here: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
Employers should also be prepared to address the concerns of employees who are at high-risk, especially as identified by the CDC. These include individuals 65 years and older, and individuals of all ages with underlying medical conditions, including but not limited to, chronic lung disease, serious heart conditions, and the immunocompromised. Employers may need to reconsider time off policies, including sick leave, and make adjustments, especially for high-risk employees. A full listing of those at higher risk may be found at: https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.Businesses must also consider the possibility that an employee will test positive for COVID-19. In such an eventuality, the employee should not be named, due to HIPAA and other privacy laws. Individuals who may have been in contact with the sick worker within 14 days will need to be contacted and restricted accordingly.
Unfortunately, companies will also need to consider the potential for litigation. Already, there are rumblings about lawsuits from people who have contracted COVID-19 against entities that allegedly exposed them to unreasonable risk by failing to meet health and safety guidelines to keep their employees and customers safe.
This reality only reinforces the need to know, understand, and implement the regulations and guidelines issued by the White House, CDC, OSHA, and state and local governments. This is not a time to wing it and hope for the best. With planning, care, and enforcement, however, a business can reopen with confidence and look forward to being in the vanguard of getting Georgia back to work.
John Connolly is a partner at Flint, Connolly & Walker, LLP and assists individuals and companies in business, real estate, and complex litigation. He graduated from Georgia State University School of Law and has practiced in metro Atlanta for his entire career.