Bloomberg Law
May 18, 2020, 8:00 AM

INSIGHT: Protecting Lives and Livelihoods—Concerns as States Reopen

Susan Gross Sholinsky
Susan Gross Sholinsky
Epstein Becker Green
Elizabeth Houghton
Elizabeth Houghton
Epstein Becker Green
Adriana  Kosovych
Adriana Kosovych
Epstein Becker Green

Nascent initiatives to reopen the nation’s economy have gained momentum almost as quickly as the efforts to shut it down in response to the Covid-19 pandemic that took hold barely two months ago.

Though the move to reopen has spread quickly, it is not without controversy. Experts have urged states to proceed with caution, citing such concerns as:

  1. the increase in Covid-19 cases in many reopening states;
  2. recent polling confirming the public’s support for continuing the shutdown and suggesting a reluctance to return to business “as usual” just yet; and
  3. the lack of a comprehensive nationwide program for testing, contact tracing, and isolating individuals who test positive for Covid-19 or have been in contact with an exposed individual.

Moreover, many employers, though anxious to reopen, have additional concerns about the potential for liability to workers, clients, customers, and others who may contract Covid-19 due to an interaction with their business, and the real possibility that the reopening will result in a spike in new cases significant enough to necessitate another, perhaps costlier, shutdown.

In assessing a state’s reopening plan, employers need to be mindful of both the practical hurdles and legal pitfalls inherent in such initiatives, and ensure that their return-to-work policies and practices are as safety-focused and otherwise legally sound as possible. A useful starting point for such an assessment may be with guidance from the federal government.

The Federal Government’s Initiative

On April 16, the White House and the Centers for Disease Control and Prevention released Guidelines for Opening Up America Again (federal guidelines), a multi-phased, data-based approach to reopening a local economy, which states and employers could voluntarily choose to follow, in whole or in part.

Proposed State or Regional Gating Criteria

The federal guidelines propose three phases to reopening a local economy. Each phase allows for the increased loosening of various restrictions, such as who must shelter in place, which businesses may open and under what limitations, and the extent of social distancing mandates.

Prior to initiating each phase, however, the federal guidelines instruct that the state or region satisfy specific “gating criteria”, including

  1. a 14-day period of a “downward trajectory” of Covid-19 like “syndromic” cases;
  2. a 14-day period of a downward trajectory of documented Covid-19 cases;
  3. the ability to treat all patients in hospitals without crisis care; and
  4. a testing program for at-risk healthcare workers, including emerging antibody testing.

On April 25, the World Health Organization reiterated that it remains unknown the extent to which the presence of antibodies provides immunity from re-infection.

Notably, an analysis by Bloomberg News of current state reopening plans found that, as of May 6, 10 states that had relaxed shutdown orders did not meet the federal guidelines gating criteria.

‘Core State Preparedness Responsibilities’

In addition to the gating requirements, the federal guidelines recommend that the state or region satisfy various standards—referred to as “Core State Preparedness Responsibilities”—prior to implementing each of the three phases, including, among other capabilities: (i) the ability to test and contact trace symptomatic individuals, as well as asymptomatic individuals who belong to certain vulnerable populations; (ii) the capacity to “quickly and independently” supply sufficient personal protective equipment (PPE), critical medical equipment, and intensive care units to handle a “dramatic surge” in need; and (iii) plans to protect workers in critical industries, individuals working and living in “high-risk facilities”, and mass transit users.

As with the gating criteria, it is questionable whether most states’ reopening plans meet these preparedness requirements. For example, according to one recent survey of 41 states and the District of Columbia, as of April 28, only one state—Nebraska—had in place the estimated number of contact tracers needed per capita to adequately track individuals suspected of having or having been exposed to Covid-19.

A state’s lack of compliance with the gating criteria and preparedness responsibilities in the federal guidelines could pose significant liability risks for employers, especially with respect to testing and contact tracing.

Thus, in developing their own return-to-work policies, employers should identify and, to the extent possible, address weaknesses in the state reopening plan that may adversely affect their operations or interests.

General Guidelines for Employers

The federal guidelines recommend that employers develop and implement policies, in accordance with applicable law and regulations, as well as industry best practices, on the following matters:

  • Mandating social distancing and PPE;
  • Implementing temperature checks;
  • Adopting sanitation practices;
  • Disinfecting common and high-traffic areas;
  • Limiting nonessential business travel;
  • Monitoring the workforce for indicative Covid-19 symptoms; and
  • Developing and implementing procedures for workforce contact tracing should an employee test positive for Covd-19.

Aside from the questionable efficacy or sufficiency of some of these measures (e.g., temperature checks will not reveal an asymptomatic Covid-19 carrier), the federal guidelines raise several practical and legal issues, and pose several unanswered questions (e.g., whether recommended “strict physical distancing protocols” are consistent with the six-feet-of-separation rule recommended by the CDC).

Similarly, are the “special accommodations” for “vulnerable individuals” recommended under the federal regulations analogous to “reasonable accommodations” under the Americans with Disabilities Act?

Navigating Uncharted Waters

Employers must ensure that their policies and practices comply with all applicable laws and regulations, such as the Occupational Safety and Health Administration’s safety and reporting requirements, the prohibition against disability, pregnancy, age, national origin, and other types of discrimination under federal, state, and local laws, and all applicable wage and hour laws (e.g., must employees be paid for time spent having their temperature taken?).

The law is in flux on many of these issues, and guidance is emerging from government agencies on a near daily basis. For example, OSHA recently issued new guidance on the reporting of Covid-19 cases at the workplace, and the EEOC, for the fourth time in one month, clarified the kind of Covid-19-related testing permissible under the ADA.

In developing return-to-work plans and determining when it is wise to reopen, employers should proceed with caution, and consider whether conditions may not yet be conducive to a successful reopening—e.g., schools remaining closed and the unavailability of adequate testing.

Furthermore, upon reopening, employers should take steps to ensure that employees will be healthy and safe in the workplace by continuing to review evolving guidance from agencies such as OSHA, the CDC, and the EEOC. Employers will see there is a “new normal” and that no “one size fits all” reopening model is available.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Susan Gross Sholinsky is a member of the firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green and vice chair of the firm’s National Employment, Labor & Workforce Management Steering Committee. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims.

Elizabeth Houghton is an associate in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She focuses her practice on representing clients in employment-related litigation on a broad array of matters, including claims of discrimination, harassment, retaliation, failure to accommodate disabilities, and breach of employment contracts and restrictive covenants.

Adriana Kosovych is an associate in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She focuses her practice on representing clients in employment-related litigation on a broad array of matters, including claims of discrimination, harassment, retaliation, failure to accommodate disabilities, breach of employment contracts and restrictive covenants, and wage and hour disputes, in state and federal courts and before various administrative agencies.