Re-Opening Your Business? Risks and Liabilities to Consider

As we’ve “flattened the curve” of COVID-19 infection here in the United States, most states, including Nevada and Ohio, have started to slowly reopen the doors of non-essential businesses. Some have been eager to do so, others have been very opposed, but still others are on the fence. The exponential growth of the virus throughout the country seems to have slowed or leveled off in some places, but the threat of getting infected is absolutely still present. All the same, people (possibly including you) are worried about their livelihoods, paying their rent, and keeping their businesses alive.

A global pandemic isn’t something we’ve ever experienced, so it’s hard to know how to move forward safely. As a business owner, you may be wondering what risks you may be taking on, not just health-wise, but legally, by reopening What if one of your employees gets sick, or has a family member who gets sick, and sues your business? Would customers be in danger? And if they became ill, could they hold you and your business liable for it?

If this seems like a minefield of liabilities to you, you’re not alone. Politicians are currently debating how to protect businesses from liability while also protecting employee and customer health, and the Centers for Disease Control and Prevention have sent draft guidance to Washington for the administration to review and reveal to the public. But in the meantime, you might feel like you’re flying blind.

Aside from the public health worries, it’s also a concern that these liability questions might not be answered until it’s too late—and you’re fighting for your business’s survival in court.

Some business owners are choosing not to take the risk at all, and to continue to deliver services virtually, wherever that’s possible. But if you haven’t gotten any financial assistance from an EIDL loan or a PPP loan, and your business is hanging on by a thread, reopening now may seem like your only option to keep from closing for good. If so, it’s important to follow guidelines that do exist.

Basic Safety Responsibilities for Business Owners

The basic rule of workplace safety is that employers are supposed to make reasonable efforts to keep their workers safe. More specifically, the Occupational Safety and Health Administration (OSHA), says that a workplace should be “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. Right now, OSHA is advising businesses to use standards the Centers for Disease Control and Prevention have set out to guide decision-making in this new world.

You can read the CDC recommendations in more depth here, but we’ll sum them up for you below. If you need guidance figuring out how your business can follow these guidelines, give us a call and we’d be happy to help, too. Following as many of these rules as possible, and being able to prove you’re following them, are the best things you can do right now to protect your business from lawsuits.

Make a Plan for Cleanliness

Making a plan is good both so you and your employees know exactly what standards to follow going forward, but also so you have a record of the precautions your business is taking from the start. That way, if you do end up in court, you have evidence that you’re following the CDC’s best practices. If you need a little help, we, as your Family Business LawyerTM, can help you put your plan together.

First, figure out what needs to be cleaned. The CDC has put together a document and flowchart helping you to determine how and how often a surface needs to be cleaned and disinfected. They define cleaning as using “soap and water [to remove] germs, dirt, and impurities from surfaces.” Disinfecting refers to actually killing germs on surfaces, and they suggest using an EPA-approved disinfectant or bleach solution to do this.

Make sure you designate who will be doing the work to clean and disinfect and when they’ll be doing it. Hang up a record sheet on the wall to track whether cleaning and disinfecting has occurred and/or set timers to keep you accountable (and to cover your bases).

Remember to grab all the equipment you’ll need to keep up these habits before you open! And if you do make changes to your cleaning routine, make sure to note these in your written plan.

Decide How to Practice Social Distancing and Safe Behavior

We’ve been getting a lot of tips on how to protect ourselves in the last several weeks, and those habits are more important than ever. Be sure to include them in your plan, along with how frequently they should be carried out. As a reminder, these instructions include:

• Closing break rooms to encourage social distancing between employees,
• Wearing face coverings and avoiding touching one’s face,
• Washing hands frequently for at least 20 seconds at a time,
• Frequently using a 60% alcohol hand sanitizer when soap and water aren’t available,
• Staying home at the first sign of illness,
• And (again), frequent cleaning and disinfecting of surfaces.

Lots of businesses are finding creative ways to maintain safe social distancing, like laying tape down on the floor to demonstrate the space to customers, blocking every other seat in a waiting area, and allowing fewer people into a business at a time. Decide what works best for your business and then stick to your plan. And if you can help employees and/or customers by providing tools like face masks and hand sanitizer, all the better.

Do the Best You Can for Yourself and Others

This is brand new territory for all of us, and with the risk of illness and possible lawsuits, the path looks pretty rocky. But if you do decide to brave it, your best bet to stay safe is to follow public health recommendations and to be able to prove that you’re doing so. That way, you’re not just protecting your business, but doing your part to protect your customers, employees, and everyone that they come into contact with. If you’d like our help to vet your processes, and document your procedures, please do reach out.

This article is a service of Greg Gordillo, Family Business LawyerTM. We offer a complete spectrum of legal services for businesses and can help you make the wisest choices on how to deal with your business throughout life and in the event of your death. We also offer a LIFT Start-Up Session™ or a LIFT Audit for an ongoing business, which includes a review of all the legal, financial, and tax systems you need for your business. Call us today to schedule.