How Small Businesses Can Survive COVID-19

Governor Gavin Newsom created the “Six Critical Indicators” framework that California will consider before ending or changing the statewide stay-at-home order.[1] The framework is not a concrete plan, but the indicators will serve as an outline for modifying the stay-at-home order. The six indicators are:

  1. Monitoring and protecting communities through testing, contact tracing, isolating and assisting positive cases;

 

  1. Preventing infection in people who are at risk for severe Covid-19;

 

  1. Hospital and health care centers ability to manage surges;

 

  1. Developing therapeutics to meet the demand;

 

  1. Business, schools and child care facilities plans to support physical distancing;

 

  1. Evaluating when to reinstitute certain measures, such as the stay-at-home order, if needed.

 

Additionally, local cities and counties have adopted rules in combination with California’s stay-at-home order. The California League of Cities[2] and the California Association of Counties[3] have developed helpful diagrams to determine what stay-at-home orders are in effect where a person is located. Generally speaking, where there is a federal order and more restrictive state or local order in place, the state and local orders will control. However, this issue might not always be clear and it is best to consult a legal professional to determine which law controls depending on the individual orders.

In the meantime businesses should start implementing procedures to open where the risk of Covid-19 infection still exists. Several lawsuits have already been filed against companies where the plaintiff’s claim that a company negligently promoted the spread of Covid-19 or failed to disclose information about its risks.[4] Additionally, lawsuits have been filed against facilities where a loved one’s family passed away due to Covid-19.[5] Some of these claims might not have merit, but businesses should take proactive steps to reduce the risk of a lawsuit before it’s too late. To reduce the risk of a lawsuit the following list of suggested issues could be considered when opening post stay-at-home order;

General cleanliness

The Center for Disease Control (CDC) has published recommendations for cleaning and disinfecting procedures for customers and employees.[6] Highly touched surface areas should be cleaned regularly and they should be cleaned with products that will eliminate the risk of Covid-19 infection. If possible eliminate non-essential touch areas, magazines, communal food and drink stations, etc. Non-essential touch areas should be discontinued as long as the risk of Covid-19 is still present due to the current shortage of cleaning and disinfectant products.

Personal protective equipment (PPE)

Some form of PPE should be used once businesses start reopening. PPE that could be worn include mask, cloth covers, respirators, gloves, gowns or eye protection. The CDC has issued a helpful guide to properly donning (putting on) and doffing (removing) PPE where there is a risk of Covid-19 infection.[7] Additionally, the Food and Drug Administration has issued guidance for conservation strategies of PPE if equipment is running low or additional equipment is not available. [8]

Privacy

Businesses must protect the privacy of individuals who become Covid-19 positive under the Health Insurance Portability and Accountability Act (HIPAA) guidelines published by the Health and Human Services.[9] If an unauthorized disclosure of the infected patient’s information occurs without the patient’s consent, the disclosing party could face corrective actions or monetary settlements. Employers should create procedures and policies ensuring health information of Covid-19 positive employees is not inadvertently disclosed.

Human Logistics and Movement

Employers should consider allowing employees to work from home or allow customers to do business virtually. However, if working from home is not possible employers could consider altering the layout and movement within their workspace. For example, social distancing rules for work areas, common areas, exits, conference room, and break area. Businesses should consider the altering the movement of workers and guest to reduce or eliminate co-infection of Covid-19. Finally, another example would be converting restrooms could be converted to single use. Physical workplace requirements will vary based on the businesses location and layout, consultants and counsel can be provided to meet the needs of each unique location.

Risk avoidance

The Occupational Safety and Health Administration within the Department of Labor has created a Hazard Identification and Assessment program to help keep business owners proactive in identifying and eliminating the hazards posed by Covid-19.[10] Additionally, the CDC has provided interim guidance to reflect the new challenges faced with Covid-19.[11] The six action items within the Hazard Prevention and Control assessment assist business owners in identifying the “root causes” of workplace hazards and proactive change the businesses to avoid future hazards. The CDC action items help business owners collect data, inspect possible hazards, identify hazards, conduct investigations, identify hazards that are emergency or non-routine, and prioritize measures based on the characterized nature of the hazard. An assessment of risk helps employers understand hazards within their place of business and prioritize controlling the hazards identified.

At Griswold LaSalle, we understand how important your business or employment is to your livelihood and can help protect this interest. If you have any questions about returning to work, we are open. All of our attorneys are available via teleconference or video conference for a consultation.

[1] https://www.gov.ca.gov/wp-content/uploads/2020/04/California-Roadmap-to-Modify-the-Stay-at-Home-Order.pdf

[2] https://www.cacities.org/Regions/California-Cities

[3] https://www.counties.org/carousel/resources-regarding-coronavirus-and-covid-19#

[4] Turner v. Costa Crociere SPA, No. 20-cv-21481 (S.D. Fla. Apr. 7, 2020); Archer v. Carnival Corporation, et al., No. 20-cv-02381 (N.D. Cal. Apr. 8, 2020);

[5] De Los Angeles v. Life Care Centers of America, Inc., No. 20-2-07689-9 SEA (Wash. Super. Ct. Apr. 10, 2020)

[6] https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html

[7] https://www.cdc.gov/coronavirus/2019-ncov/downloads/A_FS_HCP_COVID19_PPE.pdf

[8] https://www.fda.gov/medical-devices/letters-health-care-providers/surgical-mask-and-gown-conservation-strategies-letter-health-care-providers

[9] https://www.hhs.gov/sites/default/files/guidance-on-media-and-film-crews-access-to-phi.pdf

[10] https://www.osha.gov/shpguidelines/hazard-Identification.html

[11] https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html