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Reopening Your Business: What If I Have to Shut Down Again?

Author: Natasha M. Nazareth, Ginny Cascio Bonifacino Date: 07/16/2020

Categories: Corporate and Business Law, Covid-19 News and Resources, Employment Law & Litigation

Attractive young woman inside a shop with her face in the window flipping over a "closed" sign symbolizing a shut down of business due to the pandemic. By now, most business owners have read the emerging scientific news that the COVID-19 pandemic may linger for one to three years. Alongside this “lengthening” of the curve, the media is filled with coverage of the political, social and economic pressure to re-open and significant concerns from employees that their workplaces will not be safe enough.   In any event, businesses should prepare for re-closing and for one or more partial contractions before complete stabilization. 

In Part 1 of this series, we focused on preparation to reopen in a safe and effective way. In Part 2, we focused on reducing labor risks. Now is also the time to plan for possible re-closure. 

  1. Learn and Improve. 

Employers should revisit what worked and what they would do differently if the business has to scale down or close again. As much as innovation may have occurred on the fly, there is now some breathing room to assess results and make course corrections.  

  1. Solidify the contingency options. 

While the first wave of lockdowns was unpredicted and thus many employers were caught off guard with the unprecedented scope of the crisis, there is time to button up before the next indication that an individual business may need to close because of a more local or even site-specific outbreak.  Planning techniques include monitoring for an up-tick in absences, cross-training for redundancy in all positions, identifying core or essential positions, implementing telecommuting agreements (or at least having a template ready), and developing scheduling alternatives in case greater social distancing is needed or there are not enough employees available. 

  1. Act Legally and Document Action Taken

Beware that guidance from the EEOC, CDC, and OSHA continues to evolve along with local and state directives. Key aspects of a single employer deciding to re-close may include the employer collecting data from employees or responding to employee concerns about hot topics. 

  • temperature checks – permissible under certain conditions
  • symptom screening – permissible under certain conditions
  • COVID testing – permissible under certain conditions
  • COVID antibody testing – cannot be used for making employment-related decisions
  • recent travel – permissible under certain conditions
  • caretaking responsibilities – some are protected by law and others are not
  • employees with disabilities or at high risk — engage in the ADA “interactive process”
  • contact tracing – permissible under certain conditions

Employers must navigate the technical and practical web of employee privacy, imminent danger to others, job-relatedness, non-discrimination, the reasonableness of accommodations and non-retaliation. To address one employee request properly, an employer may need to apply as many as 6 or 7 different laws.

We continue to hear frustration from clients that a one-size-fits-all approach doesn’t work. We are glad to walk you through solutions to keep your business running efficiently and manage risk wisely. Natasha M. Nazareth can be reached at (240) 778-2310 or nnazareth@mcmillanmetro.com. Ginny Cascio Bonifacino can be reached at (240) 778-2315 or gcbonifacino@mcmillanmetro.com.