As more and more states, including Florida, revoke or allow their "stay-at-home'' orders to expire, it is important for businesses to understand the scope of the orders being issued that plan for economic recovery and how to best prepare their businesses.
Read on for best practices for working with employees, clients, customers, and others amid the Coronavirus pandemic.
Florida’s "Full'' Phase I
Upon the recent expiration of Florida’s "Stay-at-Home'' Order, a series of Executive Orders entitled Phase 1: Safe. Smart. Step-by-Step. Plan for Florida’s Recovery were issued by the Office of the Governor to begin the State’s economic recovery. As of Monday, May 18th, Florida is open at "full Phase I,'' which generally means the following:
(1) Floridians should continue abiding by previously recommended social distancing guidelines;
(2) Businesses defined as "essential'' can continue their activities at a capacity that appropriately balances "public safety, the health and safety of the workforce, and the continued delivery of essential critical infrastructure services and functions;
(3) The following types of businesses can operate at 50% of building capacity: restaurants, retail shops, museums, libraries, barbershops, cosmetology salons, cosmetology specialty salons, and gyms/fitness centers;
(4) Medical offices can offer elective procedures (in addition to previously allowed non-elective procedures) upon meeting specified guidelines;
(5) Professional sports may operate and venues may host training, competitions, events, and games;
(6) Amusement parks may submit a reopening plan to the State that includes a proposed date for resumption of operations and guidelines to ensure guest and staff safety; and
(7) Vacation rentals can operate if the county in which they are located has completed the required approval process.
Employment policies and procedures
Although many Florida businesses that were unable to operate during the state’s Stay-at-Home Order can now do so in at least some capacity, operating in the COVID-19 era involves several decisions regarding when and how to do business in a way that keeps employees and the public safe. The following topics are a non-exhaustive list of issues for businesses to consider as they operate in the wake of Coronavirus.
Develop a Revised Operating Plan
-- Clearly communicate all new policies to employees, clients, customers, suppliers, vendors and anyone else necessary, emphasizing any new procedures different from the past protocol. For example, consider addressing:
New Business Models
-- Determine what changes must be made to your previous practices, such as requiring that: all transactions are cashless; orders are placed online before arriving in-person for curbside pick-up; ID is shown for pick-up orders; the number of people in the business at the same time is limited, including sometimes to one non-worker; the direction that people walk is scripted; everyone wears certain PPE; office doors are closed while an employee is working; temperatures are taken before entry is permitted; and more.
It is important that everyone who enters the business is aware of these changes prior to arrival and understands how such changes will reduce, or change the need for employees, customers, vendors, and others to physically be in the workplace. As these changes are made, also determine what third-party agreements need to be modified to account for possible longer inventory lead times and changing demand.
Designate a Workplace Coordinator
-- Designate someone to lead COVID-19 issues and their impact in the workplace.
-- Provide ongoing updates to employees and other individuals that interact with the business. Employees should also be provided with a clear channel to communicate COVID-19 related issues to the company.
-- Determine which team members will work and when and clearly communicate such decisions to your workforce. When making such decisions, you may want to consider whether and how returning employees to less than their prior working hours may impact issues related to unemployment compensation. All employment decisions must be made in a non-discriminatory fashion that does not adversely impact workers of a particular gender, race, national origin, age, religion, or other protected status. You must also consider any other obligations when making such decisions, such as those under agreements, policies, and any collective bargaining agreements.
Return to Work/Furlough Recall Letter
-- Employers returning furloughed employees to work should provide such employees with a return-to-work, or furlough recall, letter providing, at a minimum, advance notice of the return date, identification of work that the employer has available for the employee, request that employees with issues returning to work notify the employer in writing as soon as possible, and the contact person for questions or concerns.
Employees with Return to Work Challenges
-- The EEOC’s Pandemic Preparedness in the Workplace and the Americans with Disabilities Act provide additional guidance regarding determining which employees may have issues returning to work due to childcare, transportation, and/or medical issues, including an approved questionnaire, located within Section III(A)(2). Note: The EEOC has approved employers asking employees in advance of their return date to identify any reasonable accommodations they will need when they return.
-- Employers should be prepared to address benefits issues, such as, for example, whether re-enrollment in a benefits plan is necessary, additional payroll deductions that will be taken for employee premiums paid by the employer during the furlough, and any action required by the employee regarding their 401(k) elections.
-- Employees who are rehired after having been previously laid-off or terminated must complete a new onboarding process, including all necessary paperwork.
Address Safety Concerns
-- Before reopening, ensure a safe workplace environment such as by taking the safety precautions recommended in the section below.
Review and Update Existing Policies
-- Certain workplace policies and procedures, such as those related to sick leave/PTO, attendance, and work-from-home, likely need to be updated for Coronavirus implications. In particular, review employment policies and make revisions to comply with recently enacted legislation like the Families First Coronavirus Response Act (FFCRA) and the expanded Family and Medical Leave Act (FMLA). While FFCRA did not apply to workplaces that were completely shut down, or to employers that did not have work for employees (see DOL FFCRA FAQs 24-28), that will change when these businesses reopen. Employers with fewer than 500 employees should review their policies and procedures concerning leave entitlement under FMLA and be prepared to provide paid leave to eligible employees under FFCRA. Accordingly, before returning your workforce, consider developing a standard FFCRA request form that will capture required information.
Workplace Health & Safety
Given the nature of the Coronavirus, ensuring workplace health and safety is one of the biggest challenges companies face in their operations. Some employers have invested several thousand dollars reconfiguring and deep-cleaning their facilities and outfitting them with sanitizers and PPE. To assist businesses in making necessary changes that adhere to state and federal occupational safety laws, several leading agencies have published helpful guidance, such as the Interim Guidance for Businesses and Employers issued by the Centers for Disease Control and Prevention (CDC), Guidance on Preparing Workplaces for COVID-19 issued by the U.S. Department of Labor Occupational Safety and Health Administration, and the Small Business Resource Guide issued by The National Institute for Occupational Safety and Health (NIOSH). A non-exhaustive list of solutions that businesses can implement to help meet these standards follows.
Increase Facility Cleaning and Disinfection
-- Prior to reopening, businesses should deep-clean and disinfect the workplace and develop a schedule for regular cleaning and disinfecting all frequently touched surfaces. Additionally, companies should have a special cleaning and disinfectant protocol ready to implement after anyone suspected or confirmed to have COVID-19 is in the facility.
The CDC recommends the following for facilities that do not house people overnight:
Offer Hand Sanitizer
- Close off all areas visited by the ill person;
- Increase air circulation in the area;
- Wait 24 hours before beginning other cleaning measures;
- Clean all surfaces with detergent or soap and water prior to disinfection; and
- Disinfect all surfaces with an EPA-approved product effective against COVID-19.
-- Have hand sanitizer in strategic areas throughout the building, such as by entryways, exits, and additional areas where people may touch common areas or items.
Personal Health Checks
-- Consider whether testing or screening is necessary and if so, develop a procedure for employees to confidentially report COVID-19 symptoms without coming into the office. Also establish a process for assessing an employee’s ability to return to the office once symptom-free (e.g., taking the temperature of an employee). Note: Collecting the information is allowed but must be kept confidential and away from the employee’s personnel file.
Also, consider whether you will help employees monitor their health and with whom they contact, such as by making touchless thermometers available, providing employees with notebooks that they personally keep and do not share with the employer regarding their health and daily contacts, and/or by publishing instructions such as how to best wash your hands, safely put on and take off gloves, etc.
Encourage Social Distancing Guidelines
-- "Social distancing'' involves avoiding "large gatherings and maintaining distance at least 6 feet apart from others when possible.'' Determine how social distancing can be accomplished in your business, such as, for example, by installing plexiglass dividers between open areas like cash registers or bars and the public, staggering staffing to lower the number of employees working together in-person at one time, limiting the number of customers/clients/visitors permitted at/in the facility at once, and encouraging customers to place orders online for at-home delivery or curbside pick-up at a designated time.
Encourage Remote Work
-- To further reduce exposure and implement social distancing, encourage staff who can perform their jobs remotely to do so. For tips on effectively working from home and remotely managing your workforce, see the previously published articles on Spread Your Sunshine’s Blog, Shine brightly while working from home! and Effectively Leading Your Remote Team.
Implement an Appointment Only System
-- Where possible, require that visitors and vendors be seen by appointment only to help control the number of individuals present at the same time.
Evaluate Floor Plans
-- Create adequate physical distances between employees and customers, such as by reorganizing desks, cubicles, equipment, tables, and chairs.
Regulate Traffic Flow
-- Mark designated paths to indicate the direction that people should walk in high-traffic areas. Also, place distance markers at ordering and check-out areas so that customers know the distance necessary to maintain 6-foot intervals.
Remove or Limit Communal Spaces
-- Remove seating from, or reduce the seating in, lobbies, waiting rooms, conference rooms, breakrooms, and other common areas to limit the number of people who can congregate or touch shared items.
-- Post signage and other reminders that employees and guests must practice good hygiene such as by leaving the facility if they have a temperature or the onset of any other Coronavirus symptoms, washing hands, sneezing, and coughing into the elbow, wearing masks, maintaining appropriate distance, etc.
Set and Advertise Occupancy Limits
-- Post occupancy limits conspicuously in restrooms, elevators, breakrooms, etc.
Suspend Sharing Liquids, Food, and Utensils
-- Liquids and food should not be shared, such as through multi-cup coffee and teapots, ice machines, salt and pepper shakers, condiment stations, donut and bagel trays, celebratory cakes, cookie boxes, pizzas, potlucks, or buffets. Employees should bring their own utensils and condiments or if provided by the company, such items should be single-use.
Evaluate the Air Ventilation Systems
-- Conduct checks to lessen the risk that the virus spreads because of how the air circulates around the facility.
Personal Protective Equipment (PPE)
-- Implement the PPE protocol that is necessary for your workplace, including the wearing of masks, gloves, goggles, face shields, gowns, etc. Provide instructions for safely putting on, removing, and cleaning (if applicable) such equipment as well as who is responsible for the provision of the same (i.e., the business or the person wearing the PPE).
Limiting potential liability
Another issue businesses operating during the pandemic must consider is the liability for people being exposed to and contracting COVID-19 and how to best limit such liability. While it presently seems likely that the state and/or federal legislatures may further address this issue at some point in the future, as of now, the following are measures you may want to take to try to limit the liability to which your business is exposed.
Publish Disclaimers and Require Release Forms
-- Conspicuously publish disclaimers advising of the inherent risk of being exposed to and/or contracting COVID-19 upon entering the business and/or require all customer/clients/visitors to sign a release or other disclaimer of liability waiving liability prior to granting access to the business or providing goods or services. One such example is Walt Disney World, which, days before opening a small portion of its Florida resort, published the following statement on its website, "An inherent risk of exposure to COVID-19 exists in any public place where people are present. COVID-19 is an extremely contagious disease that can lead to severe illness and death.''
Provide Notice to Insurance Carriers and Ensure You Have Appropriate Coverage
-- Employers should review their insurance policies and potential coverage for claims and events that may arise due to the COVID-19 pandemic. More specifically, businesses should determine if their current insurance policies cover losses during and after their reopening and to what extent. It is also helpful for businesses to monitor (such as through the news) how their carrier responds to such claims so that they can appropriately plan for such similar experience (understanding that their policy may differ from the one at issue in the news).
Assess and Stay Up to Date on Applicable Federal Laws and Agency Guidance
-- Since March, several new federal laws have been enacted (e.g., the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Families First Coronavirus Response Act (FFCRA) and federal agencies have frequently issued new guidance (e.g., Food and Drug Administration (FDA), Department of Labor (DOL), Internal Revenue Service (IRS), Occupational Safety and Health Administration (OSHA), Centers for Disease Control and Prevention (CDC)). It is important to stay abreast of these developments to ensure that your business is compliant with its latest obligations.
Assess and Stay Up to Date on Applicable State and County/Local Laws & Agency Guidance
-- Like the federal government, as discussed in the "full Phase I'' section above, over the past several weeks, the State of Florida has issued several Executive Orders and its agencies have issued accompanying guidance governing when and how businesses can operate. Likewise, counties and local governments have issued orders that do not always align with the state’s mandate. Given the frequency and complexity with which new guidance is being issued by all levels of government, it is ever more important that businesses are vigilant in staying abreast of the rules and laws applicable to them.
It is exciting that businesses in Florida and other states are beginning to safely reopen and start the journey to economic recovery. Hopefully, the resources herein bring clarity to the steps that should be taken to best prepare your business for operations over the weeks and months ahead.
Attorney Melanie S. Griffin, Founder of Spread Your Sunshine, practices law at Shumaker, Loop & Kendrick, LLP. Attorney Felicia Marie Becker serves as Spread Your Sunshine’s Chief Legal Officer.
Should more information on this topic be helpful to you, Spread Your Sunshine is hosting a complimentary companion webinar to this article this week. Email [email protected]
to complete your complimentary registration.
Note: Coronavirus guidance is constantly changing. All information herein is therefore limited to the date of publication: Tuesday, May 19, 2020.