Back to Business

By: Ron Schneider, Shiloh Theberge, Talesha Saint-Marc, and Bill Wahrer

In ME

On April 29, 2020, Governor Mills released a new Executive Order extending her prior stay-at-home order and implementing her Restarting Plan, which outlines how the Commissioner of the Department of Economic and Community Development (DECD), consistent with ME Center for Disease Control & Prevention (CDC) and Department of Health and Human Services (DHHS) guidance, may identify businesses and activities that can be safely adjusted to allow more economic and personal activity. On May 7th, Governor Mills announced that shortly the State will triple its COVID-19 testing capacity and, as a result, she expects to make adjustments to the Restarting Plan in the near future.

The Restarting Plan is broken down into four stages, with Stage 1 effective May 1st. with the opening of businesses that include barbershops and hair salons, drive-in theaters, health care, golf courses, and automotive sales. Progression through the stages will occur monthly and will depend on the success of previous stages. Presently, each Stage allows for additional businesses to open and for more businesses activities to resume.

To that end, the state has provided a checklist for businesses to identify best practices for safely re-opening and operating as well as a short form that businesses must commit to complying with before opening. The DECD has also made badges for businesses complying with the checklist to be voluntarily posted on sites in order to help promote consumer confidence in their operations.

In New Hampshire

On May 1, 2020, Governor Sununu extended New Hampshire’s stay-at-home order and similarly began loosening restrictions on certain aspects of the state’s economy. Under Governor Sununu’s directive—dubbed “Stay At Home 2.0”—beginning May 4th, health care facilities may resume elective and other time-sensitive  procedures, while hair salons, barber shops, and other cosmetology-based businesses can re-open as long as both employees and clients wear cloth face masks. Stay At Home 2.0 also allows businesses such as golf courses and retail stores to re-open on May 11th, subject to certain conditions. Beginning on May 18th, restaurants can resume sidewalk and outdoor food service. As is the case in ME, all businesses that re-open must comply with certain guidelines issued by the state.

In addition to using the checklists and information provided by the states, this article provides a helpful overview of various legal and practical issues business should contemplate before they re-open.

Returning Employees to Work

The Occupational Safety and Health Administration (OSHA) has stated that the requirements of the Occupational Safety and Health Act (OSH Act) may apply to preventing occupational exposure to COVID-19. Under OSH Act’s General Duty Clause, Section 5(a)(1), employers are required to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. While there is no private right of action under OSHA, there is the risk of fines and other enforcement actions. Moreover, on April 16th, OSHA advised that it will evaluate whether employers have made good faith efforts to comply with its requirements upon re-opening. There also appears to be some debate in Congress at this time as to whether there will be provisions in the next COVID-19 bill limiting liability for businesses that follow OSHA and CDC guidelines when re-opening. To prevent liability, businesses should follow guidelines from OSHA, the CDC, and local authorities when re-opening, starting with identifying a workplace coordinator to track new developments and coordinate implementation of related policies and procedures. Businesses also should consider the suggestions set out below.

Timing

The first consideration should be the timing of employee return, particularly with respect to the possibility of infection. Rather than returning all employees to work at one time, businesses should consider staggering employee returns, beginning with those employees whose job duties are most difficult to accomplish on a remote basis. For the same reasons, once employees do return to work, businesses should also consider staggering employees’ work hours and/or workdays, and/or allowing employees to continue to work remotely where possible on certain days, particularly in locations where there are crowded commutes. Businesses should keep in mind the need to maintain flexibility for certain employees who have to stay home to care for sick family members or take care of children due to school and childcare closures (particularly when these employees are entitled to leave under the Families First Coronavirus Response Act (FFCRA)).

Because requiring only certain employees to work can lead to claims of discrimination, businesses may need to consider — on a case-by-case basis — whether they have to accommodate disabled employees or employees particularly susceptible to COVID-19 (e.g., pregnancy, chronic illness) with additional leave or other accommodations. Employers should consider whether it is feasible to have employees begin to return to work on a voluntary basis.

Personal Protective Equipment (PPE) and Other Health and Safety Precautions

Another item businesses will need to consider is whether all or certain employees should be wearing PPE. Businesses should conduct this analysis based on the OSHA exposure risk levels as well as the latest recommendations by the CDC. If a business will be requiring PPE, it needs to ensure that it provides training to employees on how to properly use the equipment. Businesses should not use certain kinds of PPE, such as gloves, as a mere substitute for appropriate hygiene, as misuse of PPE and a lack of good hygiene practice presents a risk of spreading the virus.

Businesses may also want to consider whether to take employee temperatures upon their arrival at work, and not allow employees with temperatures to enter the worksite. The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance that employers are allowed to take and log employees’ temperatures (previously this was prohibited as an unlawful medical examination). However, if possible employers should plan for a health care worker to take the temperatures if possible and should maintain the confidentiality of the employees’ temperatures as medical information. At a minimum, businesses should make reasonable inquiries of employees as to whether they are showing any symptoms of COVID-19 and/or whether they have traveled to certain areas with active COVID-19 outbreak.

To the extent the availability of tests for COVID-19 or for COVID-19 antibodies increases, businesses may want to consider using these tests, particularly businesses in which employees regularly come into contact with vulnerable populations such as the elderly or those with chronic illnesses.

Physical Workplace Considerations

With respect to the physical worksite, businesses should:

• Consider how to modify workspaces to allow for social distancing, and post clear instructions and signage
• Deep clean all working spaces before employees return to work with products approved by the CDC and/or OSHA
• Consider how to control access points for employees and deliveries
• Ensure that deep cleaning occurs regularly after employees return to work
• Keep hand sanitizer, soap, tissues, and wipes on hand for employee use and post protocols
• Consider whether to close common areas at work (e.g., kitchens, break rooms)
• Consider whether to disable touchscreens
• Reduce seating capacity in conference or meeting rooms
• Encourage noncontact methods of greeting and use of coughing and sneezing etiquette and post protocols
• Educate employees on COVID-19 based on the CDC’s Public Health Recommendations for Community-Related Exposure, which suggests a 14-day quarantine period
• Consider a prohibition on sharing offices, telephones, and other work equipment to the extent possible
• Consider ventilation/air circulation improvements
• Consider whether the landlord/owner of the worksite has any requirements
• Consider the use of plexiglass to separate workspaces

Workplace Policies and Processes Applicable to Employees

Prior to returning employees to work, businesses should draft a policy detailing their response process when an employee tests positive for COVID-19 or reports that he or she has potentially been exposed to COVID-19, including the process it will use to determine who the employee was in contact with at work, the process it will use to communicate with those employees who came into contact with the diagnosed employee at work, and how it will maintain confidentiality. The policy should also include information on when individuals who have been diagnosed with COVID-19 can return to work. That policy should state that employees can return to work only with the advice of healthcare provider if they have been hospitalized or after they are symptom free if they have been isolating at home. OSHA has cautioned employers that sending an employee to a doctor for a note when there is no need for medical care can place additional, and possibly unnecessary, strain on doctors’ offices, etc., and may contribute to the spread of COVID-19. In addition to this policy, businesses should have internal and external communications templates for these situations.

Other helpful policies that businesses should consider at this time are:

• Policies regarding business and personal travel
• Communicable or infectious disease policies
• Remote work policies
• Client/customer/vendor visitation policies; and
• Sick leave policies, including, where applicable, leave policies under the FFCRA

Business Continuity

Businesses should also plan to take the necessary steps to allow their work to continue to the extent employees become ill with COVID-19 or have to be out of work caring for family members who are ill or caring for children whose schools or childcare centers are closed. Businesses should:

1. Have employees cross-trained and assigned to fill in for those employees who perform critical job duties
2. Consider whether contract or temporary employees will be needed
3. Establish a communication plan for reaching employees
4. Ensure their employees’ contact information is updated
5. Identify alternate supply chains for critical goods and services
6. Review their business insurance policies, including their workers’ compensation insurance, for key provisions that could limit exposure during the pandemic (e.g., business interruption provisions)
7. Review their key contracts to determine possible liability if the business is unable to meet the contract terms
8. Identify any operations that can be prioritized and those that can be suspended if necessary

Considering these issues prior to re-opening should assist businesses in having a smoother transition as they are getting back to business.

Bottom Line

The COVID-19 crisis is rapidly evolving and requiring businesses to adapt quickly to legal, regulatory, economic, and community impacts. Our labor & employment law team is monitoring these developments in real time and we’re here to support and assist you as needed. Please do not hesitate to reach out if we can be helpful to you.