COVID-19 - Reopening Businesses

The Covid-19 virus has dramaticallychanged the way we relate to each other and the way we do business.  As I write this, a million Americans havecontracted the disease, sixty-thousand people have died and 30 million havebeen thrown out of work in under a month. On March 22 the Director of the Ohio Department of Health issued a “Stayat Home” order requiring non-essential businesses to close.  “Social Distancing” was ordered andgatherings 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 hadto close-up shop.

These steps were instituted so thatour healthcare system would not be overwhelmed. In Ohio it seems to have worked.  TheDirector allowed manufacturing and construction to open May 4^th andconsumer and retail shops May 12^th.

If you are a business owner, you are in a difficultspot.  You must ask, “How do I keep myemployees safe?”  “How do I keep mycustomers safe?” and “How do I show the public my efforts?”

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

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

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

As business owners we owe separateduties to our staffs and to our clients and customers.  Let’s think about our responsibility to thepublic first. 

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

For example, if I drive drunk down acrowded, narrow street filled with cars and pedestrians, it is foreseeable Imight well injure someone.  Similarly, ifI am a contractor hired to build a building and I cheat and use substandardmaterials, it is foreseeable the structure may collapse.  If there is a collision with my car, or thebuilding 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 moresubtly…

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

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

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

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

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

If you know about a risk and canreasonably evaluate it, you may well decide to accept it if the benefits arehigh enough.  Indeed, the law employs theconcept of “assumption of the risk.”  Ifsomeone knowingly undertakes something risky and is injured, it is his/her ownfault.  So, if I go skiing, cross myskis, and break a leg, that’s on me.…

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

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

• What is the Covid risk to clientsand 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 exposureto the virus?
• Are the steps I am taking in linewith the recommendations of the experts?
• If there is not perfect guidance,does what I am doing make common sense?
• How do I communicate the protectivesteps I am taking to clients and customers so they can feel safe doing businesswith me?

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

So, what are the Ohio and federalexperts at the Center for Disease Control and OSHA telling us about thepandemic 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 timesas deadly as the flu and maybe much worse.
• Paradoxically, a large percentage ofpeople, particularly younger ones, are asymptomatic, or have only mildsymptoms.
• People may have been spreading thedisease up to a week before they show symptoms.
• It is spread mostly bydroplets.  As people sneeze and cough,they shed the virus, which others then breathe in, allowing the virus to attackthe lungs.
• Wearing a mask both limits theinfected from spreading the virus and protects the healthy from breathing itin.  N-95 masks are best, but any mask isbetter than none.
• It may be spread on surfaces whereit may remain active from hours to days, depending on the surface and otherconditions.
• Frequent hand washing limitsspreading, as does avoiding touching the face.
• People should keep at least six feetapart.
• Fresh air and sunshine seem to limitspreading.
• The elderly are at far greater riskthan children and young adults.
• Immuno-compromised people, andpeople suffering from diabetes, breathing issues and other co-morbidities areat high risk.
• The virus may be less active inwarmer, more humid weather, but this is not clear.

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

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

Store/office owners should:

• require staff—particularly olderstaff—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 handsanitizer to staff and customers,
• offer the option of curbsidedelivery where possible,
• provide separate operating hours forthe vulnerable, including the elderly,
• carefully document all of the above.

Manufacturers would seem wise to:

• space workers at the six-footminimum where possible,
• require masks and gloves for thosein close proximity and provide the same at no cost,
• clean and disinfect between everyshift,
• clean bathrooms frequently,
• discourage sharing of tools andequipment, if possible,
• give special protections to olderworkers.

All businesses should:

• educate employees about best healthpractices,
• allow flexible work practices,allowing work from home and considering staggered shifts,
• try to protect the most vulnerableworkers, particularly older ones,
• require staff with a cough or feverto stay home for the quarantine period,
• clean and disinfect workspacesfrequently,
• clean rest rooms and commonlytouched surfaces frequently,
• make free masks and glovesavailable,
• make hand sanitizer readily availableacross the workspace,
• provide tissues, and no-touch trashcans,
• when temperature guns becomeavailable, institute their use,
• let fresh air in,
• consider the need for employeetravel,
• place posters in the workplacepromoting the above,
• talk with vendors andsub-contractors about their health practices,
• if an employee becomes sick, followCDC guidelines for disinfecting,
• name a workplace coordinator toimplement the above,
• consider reasonable leave policiesfor workers who must care for children or sick family members,
• encourage workers to report safetyand health concerns.
• Document all of the above.

Employees who are sick should begiven paid time off.  It has beenwidely related that half of Americans only have $400 or less to get through anemergency.  A boss does not want aninfected person incentivized to stay on the job where he/she might be spreadinginfection.

Obviously, there has not been enoughpersonal protective gear for general use, since masks and gloves must first goto healthcare workers.  Similarly, therestill are not enough test kits to require every employee to be tested beforecoming to work.  However, as testingbecomes available, its use may well become the standard of care. 

Now let us talk in more detail aboutdealing with employees.  Over a hundredyears ago an injured worker was required to show her employer had donesomething negligent that caused her injury before she was compensated.  It was a tough, expensive and unequal burdento place on an employee.  Thus, duringthe Progressive period in the early 20^th century safeguards werepassed for workers, notably the Workers Compensation insurance system.  An injured worker now receives a certain andspeedy financial award, without having to show an employer’s negligence.

From the employer’s view thetrade-off is a company that pays into the Workers Compensation system in normalcircumstances may not be separately sued for injuries, death or occupationaldisease suffered by its workers.  Therehave, however, been negligence suits filed over the years by workers claimingthat the particular action of the employer resulting in injury was so egregiousthat the company should be liable over and above the compensationprovided by Workers Compensation.  To besuccessful a claimant has to show the employer committed the wrongful act withthe intent to injure or with the belief that the injury was “substantially certainto occur.”  This is an extremelydifficult bar for a plaintiff to clear…. However, as the body of evidenceconcerning the infectiousness and lethality of the virus continues to grow, itwould seem that such claims may occur where an employer does little or nothing toprotect employees. 

Be aware: Ohio R.C. 4101.12 doesprovide “[n]o employer shall require, permit, or suffer any employee to go orbe in any employment or place of employment which is not safe” and that “[n]oemployer shall fail to do every other thing reasonably necessary to protect thelife, 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 12years. She requested permission to work from home, but was denied. She alsorequested to use accrued vacation time, which was also denied.

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

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