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Businesses Face Moving Targets in States’ Safe Reopening Plans

May 14, 2020, 10:01 AM

Employers relying on states to tell them when it’s safe to relax into more normal operations—minus the virus-inspired social distancing, employee health screening, and workplace capacity limits—must navigate through continued legal uncertainty as pandemic orders evolve.

The varying business guidelines issued by governors and state health departments as states lift Covid-19 restrictions are moving targets, subject to changes and extended expiration dates, sometimes without much notice.

Georgia’s Gov. Brian Kemp (R) demonstrated the point May 12, announcing that safety requirements he previously ordered would be modified and extended through the end of May. They originally were set to expire Wednesday.

As companies pursue reopening plans, they face novel legal questions about their potential liability to employees or customers who get sick, plus the patchwork of local, state, federal, and industry-specific protocols for operating safely. Even the relatively simple question of effective dates for a state’s workplace safety mandates is proving to be complicated.

“There’s no sense of when businesses will not be operating under these guidelines,” said Stephanie E. Lewis, a management-side employment lawyer at Jackson Lewis P.C. in Greenville, S.C.

The state-level mandates, when taken together with other public health guidance from the federal Centers for Disease Control and Prevention and other groups, could factor into a business’s potential liability, as employees or customers could argue a company’s failure to follow the guidelines resulted in them contracting the virus.

“All of these orders create perceived or potential duties of care that plaintiffs’ lawyers may use,” Lewis said. Businesses are “scratching their heads going: How can we be sure that we’re doing enough?”

Health Protocols, Capacity Limits

Georgia was one of the earliest states to allow businesses such as restaurants and hair salons to reopen in late April, but in a limited capacity while requiring them to follow a long list of health-and-safety protocols.

States around the U.S. have followed to varying degrees, including Texas where restaurants and retailers were allowed to reopen May 5 but limited to 25% of their buildings’ occupancy limits. The executive order establishing the 25% limit is currently due to expire May 19, subject to a possible extension by Gov. Greg Abbott (R). The expiration is set for only one day after May 18, when office-based employers will be allowed to bring back employees.

A number of states haven’t advertised any expiration dates for their workplace safety orders but are taking a more incremental approach to gradually lifting business closures. Among them is California, where Gov. Gavin Newsom (D) announced adjustments May 12 to the state’s business reopening guidance, including letting office employees return to the workplace under certain restrictions.

South Carolina also isn’t publicizing expiration dates for its business operating guidelines, which Gov. Henry McMaster has said are recommendations and not legally binding mandates. McMaster has announced safety guidelines including a 50% capacity limit as the state allows restaurants to reopen starting May 11 and close-contact businesses such as hair salons on May 18.

No Rush Back to Normal

Albeit potentially confusing, the effective dates for state guidelines might have limited practical effect on how employers operate for the foreseeable future. Other considerations, such as the risk of liability and concerns for the safety of employees and customers, will drive decision making on how to conduct business safely, Lewis said.

“Employers have been moving cautiously, irrespective of the governor’s orders, because they don’t want to be in a situation where we have to pull back significantly because of a new outbreak,” said Amy E. Jensen, a management-side employment lawyer at Ogletree Deakins in Atlanta.

“We’re going to see employers implement a lot of these precautions going forward for a long time,” she added.

For office work, the cautious approach is likely to mean continued teleworking or staggering shifts for many employers, Jensen said. For some restaurants and retailers, it could mean sticking with a curbside pickup or delivery model for some time even after state officials allow a return to in-person dining and shopping.

“In Atlanta, a lot of restaurants have taken a slow approach. It might not make financial sense to have a half-empty dining room,” Jensen said.

The state mandates are just one of many factors for employers to consider, as many business owners closely monitor developments that could lessen the risk Covid-19 poses such as growth of antibody testing, vaccine development, and state and federal proposals for business liability limitations, Lewis said.

“Businesses are looking at this daily, by the minute, not by the month,” she said. “There’s no commitment to a timeline.”

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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