COVID-19 – Reopening Businesses

The Covid-19 virus has dramatically changed the way we relate to each other and the way we do business.  As I write this, a million Americans have contracted the disease, sixty-thousand people have died and 30 million have been thrown out of work in under a month.  On March 22 the Director of the Ohio Department of Health issued a “Stay at Home” order requiring non-essential businesses to close.  “Social Distancing” was ordered and gatherings of more than 10 people prohibited.  Thousands of small shops, schools, universities, malls, factories, non-profits, travel and leisure operations, music venues and sports events had to close-up shop.

These steps were instituted so that our healthcare system would not be overwhelmed.  In Ohio it seems to have worked.  The Director allowed manufacturing and construction to open May 4th and consumer and retail shops May 12th.

If you are a business owner, you are in a difficult spot.  You must ask, “How do I keep my employees safe?”  “How do I keep my customers safe?” and “How do I show the public my efforts?”

You receive conflicting directions from the governmental entities, which have had to develop policies in a haphazard way as our understanding of the virus changes.  For instance, it was crazy to tell us first not to bother wearing masks and then two weeks later say, “Well, yes, you should wear them now.”  Of course, this was done so healthcare workers had first crack at limited supply, but this was confusing to the public.

The psychological damage of quickly flipping from a time of high prosperity to Depression levels of unemployment, coupled with the effect of forcing folks into prolonged confinement is causing serious problems.  Children are not getting educated, and are bored, desperate to go outside and play with their friends.  Parents are fit to be tied, having to home-school their kids, worry about their elderly parents, and bear concerns about job security.  My wife and I have not been able to hold our new grandson for two months or help with the rigors of daily life with an eight-year-old….

On the one hand, shutting us off from one another has slowed the virus, and prevented cases from spiking.  On the other, a prolonged stoppage may eventually wreck the economy, at possibly greater human cost. Yes, there is hope out there such as several promising drugs like Remdesivir that may lessen the severity of the disease.  And they say we will have a vaccine within several years.  Hope, however, is not a policy.  As pressure grows to fully open up, what is the proper balance for the business owner?  This webinar will address legal issues you need to think about. 

As business owners we owe separate duties to our staffs and to our clients and customers.  Let’s think about our responsibility to the public first. 

You can be sued under negligence law if you violate a duty to take reasonable care to avoid causing injury or loss to others where it can be foreseen that a given action or inaction may harm them.  “Foreseeability” suggests something an ordinary person of common sense would expect to happen.  Similarly, “reasonable care” means taking “ordinary” precautions.  Of course, the greater potential harm, the greater an “ordinary” precaution must be.

For example, if I drive drunk down a crowded, narrow street filled with cars and pedestrians, it is foreseeable I might well injure someone.  Similarly, if I am a contractor hired to build a building and I cheat and use substandard materials, it is foreseeable the structure may collapse.  If there is a collision with my car, or the building falls down, a jury is going to be easily persuaded it was my fault, because I breached an obvious duty of care.

Let’s think about things a bit more subtly…

You and I are not entitled to an opinion about how to properly design a bridge.  A government agency with the resources and expertise must do that job on our behalf.  So, let’s say the government sets a standard that a bridge must be designed for a 50-year life and the construction company builds it to those specs.  If 75 years from now the municipality that owns the bridge has done little maintenance and it collapses, should the bridge company be on the hook?

What if 10 years after the bridge was constructed a new superior metal is invented and the regulations change requiring it to be used in all new bridges?  Should the bridge company have to rebuild the bridge, if it was properly constructed according to the regulations that existed at the time it was constructed?

Let’s now think about things from the perspective of the people who drive across the bridge.  Maybe, it is really old, but it is the only bridge for 50 miles….  Maybe the economy is bad, and the motorist/taxpayers don’t want to pay the taxes needed to build a new bridge.  Maybe they are willing to take the risk of driving across it for a few more years…. Who is at fault if the bridge falls down?  The driver of the unhappy car that fell in the river?  The taxpayers?  The municipality?  The engineer?

These examples suggest risk must be assessed from many perspectives.  I might be willing to take a risk you would never consider.  It depends on our needs and motivations….

People in their lives constantly perform cost/benefit analyses without thinking.  They agree to accept certain risks all the time.  Naturally, if I never want to get in a car wreck, I should never get in a car.  However,  the country could hardly function without motor transportation—yet hundreds of thousands of people have been killed in car crashes.  Yes, everything we do carries some sort of risk and most of these we can assess using simple common sense. 

If you know about a risk and can reasonably evaluate it, you may well decide to accept it if the benefits are high enough.  Indeed, the law employs the concept of “assumption of the risk.”  If someone knowingly undertakes something risky and is injured, it is his/her own fault.  So, if I go skiing, cross my skis, and break a leg, that’s on me.…

However, you cannot “accept” a risk you do not know about, or one that you are not qualified to assess…. To size up some risks, common sense is inadequate.  You need help from experts and this is the case with Covid-19.

Thus, as a business owner thinking about operating in the time of Covid, I need to consider all this and ask:

  • What is the Covid risk to clients and customers?
  • If I have no expertise in this area, have I adequately informed myself of the opinions of the experts?
  • What am I doing to mitigate exposure to the virus?
  • Are the steps I am taking in line with the recommendations of the experts?
  • If there is not perfect guidance, does what I am doing make common sense?
  • How do I communicate the protective steps I am taking to clients and customers so they can feel safe doing business with me?

As suggested, I must ask myself if my company’s precautions are in line with any standard of care that has been established for similar businesses.  This is understandably problematic since we are dealing with a new phenomenon that is not fully understood.  However, standards of care are being worked out as our understanding of the virus increases.  Remember, the greater the threat perceived, the greater the duty of care….

So, what are the Ohio and federal experts at the Center for Disease Control and OSHA telling us about the pandemic and how might this affect current standards of care? 

  • Covid-19 is highly infectious, apparently much more so than influenza. 
  • It likely is at least several times as deadly as the flu and maybe much worse.
  • Paradoxically, a large percentage of people, particularly younger ones, are asymptomatic, or have only mild symptoms.
  • People may have been spreading the disease up to a week before they show symptoms.
  • It is spread mostly by droplets.  As people sneeze and cough, they shed the virus, which others then breathe in, allowing the virus to attack the lungs.
  • Wearing a mask both limits the infected from spreading the virus and protects the healthy from breathing it in.  N-95 masks are best, but any mask is better than none.
  • It may be spread on surfaces where it may remain active from hours to days, depending on the surface and other conditions.
  • Frequent hand washing limits spreading, as does avoiding touching the face.
  • People should keep at least six feet apart.
  • Fresh air and sunshine seem to limit spreading.
  • The elderly are at far greater risk than children and young adults.
  • Immuno-compromised people, and people suffering from diabetes, breathing issues and other co-morbidities are at high risk.
  • The virus may be less active in warmer, more humid weather, but this is not clear.

As a businessperson, with this knowledge, what concrete steps should I take immediately to protect people doing business with me as much as reasonably possible?  Remember, liability flows from the breach of a duty which directly causes damages.  A duty flows from foreseeability and violation of standards of care.  If I take reasonable precautions in line with established standard of care, it will be harder for a customer getting sick to point to my business as the source of infection and sue me.

Listening to the experts in Ohio and at the Center for Disease Control and the Occupational Safety and Health Administration, and using common sense it would seem:

Store/office owners should:

  • require staff—particularly older staff—to wear masks and gloves where there is any close contact with people,
  • train workers in hygiene practices,
  • sanitize premises regularly,
  • require frequent hand washing,
  • clean bathrooms frequently,
  • provide readily available hand sanitizer to staff and customers,
  • offer the option of curbside delivery where possible,
  • provide separate operating hours for the vulnerable, including the elderly,
  • carefully document all of the above.

Manufacturers would seem wise to:

  • space workers at the six-foot minimum where possible,
  • require masks and gloves for those in close proximity and provide the same at no cost,
  • clean and disinfect between every shift,
  • clean bathrooms frequently,
  • discourage sharing of tools and equipment, if possible,
  • give special protections to older workers.

All businesses should:

  • educate employees about best health practices,
  • allow flexible work practices, allowing work from home and considering staggered shifts,
  • try to protect the most vulnerable workers, particularly older ones,
  • require staff with a cough or fever to stay home for the quarantine period,
  • clean and disinfect workspaces frequently,
  • clean rest rooms and commonly touched surfaces frequently,
  • make free masks and gloves available,
  • make hand sanitizer readily available across the workspace,
  • provide tissues, and no-touch trash cans,
  • when temperature guns become available, institute their use,
  • let fresh air in,
  • consider the need for employee travel,
  • place posters in the workplace promoting the above,
  • talk with vendors and sub-contractors about their health practices,
  • if an employee becomes sick, follow CDC guidelines for disinfecting,
  • name a workplace coordinator to implement the above,
  • consider reasonable leave policies for workers who must care for children or sick family members,
  • encourage workers to report safety and health concerns.
  • Document all of the above.

Employees who are sick should be given paid time off.  It has been widely related that half of Americans only have $400 or less to get through an emergency.  A boss does not want an infected person incentivized to stay on the job where he/she might be spreading infection.

Obviously, there has not been enough personal protective gear for general use, since masks and gloves must first go to healthcare workers.  Similarly, there still are not enough test kits to require every employee to be tested before coming to work.  However, as testing becomes available, its use may well become the standard of care. 

Now let us talk in more detail about dealing with employees.  Over a hundred years ago an injured worker was required to show her employer had done something negligent that caused her injury before she was compensated.  It was a tough, expensive and unequal burden to place on an employee.  Thus, during the Progressive period in the early 20th century safeguards were passed for workers, notably the Workers Compensation insurance system.  An injured worker now receives a certain and speedy financial award, without having to show an employer’s negligence.

From the employer’s view the trade-off is a company that pays into the Workers Compensation system in normal circumstances may not be separately sued for injuries, death or occupational disease suffered by its workers.  There have, however, been negligence suits filed over the years by workers claiming that the particular action of the employer resulting in injury was so egregious that the company should be liable over and above the compensation provided by Workers Compensation.  To be successful a claimant has to show the employer committed the wrongful act with the intent to injure or with the belief that the injury was “substantially certain to occur.”  This is an extremely difficult bar for a plaintiff to clear…. However, as the body of evidence concerning the infectiousness and lethality of the virus continues to grow, it would seem that such claims may occur where an employer does little or nothing to protect employees. 

Be aware: Ohio R.C. 4101.12 does provide “[n]o employer shall require, permit, or suffer any employee to go or be in any employment or place of employment which is not safe” and that “[n]o employer shall fail to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees.”

Other novel claims may be made.  Recently, a plaintiff in Cuyahoga County, Ohio was fired from her job as an event coordinator where she had worked for 12 years. She requested permission to work from home, but was denied. She also requested to use accrued vacation time, which was also denied.

She then retained a lawyer who wrote a letter to her company stating that requiring her to come to work was a violation of the Ohio stay at home order. The letter emphasized that she was willing to work remotely but would not report to work until the company complied with the safety order.  After the letter, the company complied, allowed her to use accrued time while they discussed a method for the remote employment. Less than a week later, she was terminated due to what the company called a “reallocation of resources.”  Plaintiff has now brought a claim of wrongful termination in violation of public policy. 

To summarize:  If a business suffers an outbreak among its staff, it wants to demonstrate it followed reasonable protocols to protect its people, as just described.  Similarly, it wants to put itself in a position that, bearing in mind the severity of Covid-19, it has taken reasonable, well-thought-out safety measures to protect the public.  Again, “reasonableness” is most easily proven by being able to show the company was using guidelines put forth by the state or federal government.  Best practices information for specific industries is on the websites of the Ohio Department of Health, the Center for Disease Control in Atlanta and OSHA.