Preparing Your Business for the Long-term Effects of the COVID-19 Pandemic

From implementing location capacity limits to face covering mandates, many businesses have adjusted their workplace policies to comply with federal, state, and local laws and guidance to keep operations going amid the COVID-19 pandemic. But the resurgence of coronavirus cases around the country has resulted in some changes to guidance, laws, and regulations which may vary by jurisdiction. Given such uncertainty, particularly around the uncertainty of a vaccine, planning for the long-term impact of the COVID-19 pandemic on your business is essential.

Potential business reopening rollbacks

The resurgence of coronavirus cases in some areas of the country has sometimes resulted in a rollback of opening plans, including pauses or closures of businesses. This leaves businesses to make difficult operational decisions while still adhering to applicable state and local orders. It is vital to balance the needs of your company with the requirements outlined by federal laws, guidance from the Centers for Disease Control and Prevention (CDC), and state and local authorities.

How long could recent restrictions due to the COVID-19 pandemic continue?

Many of the current restrictions placed on businesses and individuals due to the coronavirus outbreak may require a vaccine to be available before authorities will consider lifting them entirely. There are several efforts underway to develop a COVID-19 vaccine, but the timing of an approved, widely available vaccine is unknown. With a fluid situation like this, it is necessary to plan ahead and focus on providing ongoing protections for employees, customers, and your business.

Preparing your business for the long-term

Some businesses may experience full and partial closures, reopenings, and reclosures as the pandemic continues. If your business has dealt with this, consider developing and implementing a plan that takes into consideration different scenarios, including changes and limits on operations, staffing, and capacities as needed and required by law. Having a plan in place can make it easier to handle changing circumstances. Consider preparing in some of the following ways:

• Be ready for possible re-closings or rolling closings: Requirements that dictate whether you can be partially or fully open for business or closed may change with the number of infections. Prepare for a reopening or closing, such as staffing needs, shifts in operations, and additional safety measures.
• Have employee communications plans in place: When you need to share information about closing or reopening plans, a sound employee communications plan can help everyone at the business get on the same page. Learn from earlier closures to develop best practices on the frequency, timing, and dissemination of such communications.
• Determine if furloughs are necessary: Make sure you are aware of applicable federal, state, and local laws, including the WARN Act, when you determine that certain employees must be furloughed. It's strongly suggested that you consult legal counsel when considering a reduction in your workforce.
• Contact state unemployment agencies: If you have laid off workers or anticipate laying off staff, they may be entitled to unemployment benefits. Check your state's website for specific guidance and information on unemployment insurance. Consider also having a plan in place to communicate about these benefits.
• Identify support programs for dislocated workers: Workers who have been or will be laid off may have access to training programs, but eligibility requirements vary by state. Check the U.S. Department of Labor's website for your state's contact information.

Employer restrictions on travel and activities

The issue of safety precautions and potential exposure to COVID-19 is prevalent in and out of the workplace. While you can outline, document, and implement thorough health and safety plans for your worksite(s), it's tough to know or regulate which activities employees engage in or where they travel to during non-working hours.

Asking employees about off-duty activities

Employees may take part in certain activities that prevent them from following social distancing rules or taking necessary precautions. For instance, they could go to a crowded beach on a day off or visit a store that doesn't mandate that patrons wear face coverings. Can an employer restrict activities an employee participates in outside of work if they could potentially risk COVID-19 exposure to the workplace?

While employers may be able to place certain reasonable limits on activities outside of working hours or notify employees of employment-related consequences, you must proceed with caution.

Employers may not be permitted to prohibit an off-duty employee from engaging in otherwise lawful activities such as travel or attending events. Some states, including California, Colorado, Illinois, Michigan, New York, North Dakota, and Washington, do have laws that restrict an employer's ability to limit employee activity outside of work. Additionally, some states have laws expressly limiting an employer's ability to gather or keep a record of certain non-work-related activities such as an employee's associations, political activities, publications, communications, or other non-employment activities.

Tread carefully if you decide to ask employees about what they are doing away from work. Questions should be limited to those that evaluate an employee's potential risk of harm to others in the work environment, and consider law-restricted questions as outlined by your state or locality. Businesses should consult with legal counsel or an HR professional before implementing a policy.

You may be able to place certain reasonable limits and/or notify employees of employment-related consequences if they engage in risky off-duty activities. These can include:

• Restrictions on returning into the workplace for a period of time (i.e., self-quarantine for a period of days)
• Advising the employee to telework for a set number of days
• Limiting the use of PTO coupled with self-quarantine

They may also be able to use applicable paid sick leave that permits use for reasons related to COVID-19.

Any policies or employment-related consequences related to off-duty activities must not discriminate against people based on actual or perceived protected characteristics (e.g., race, ethnicity, nation of origin). Keep in mind that policies viewed as more restrictive or with harsher consequences could also result in an increased risk of employment-related claims.

What if an employee resists work travel?

Given the potential risks of traveling in these current circumstances, consider whether business travel is essential right now and whether alternatives (i.e., video conferencing) are available instead. If an employee expresses hesitation about traveling for work purposes, you may want to get more information from them. Evaluate their reasons and whether accommodations can be made. Examples may include an accommodation under the Americans with Disabilities Act (ADA) if the request is disability related, or protections under the Occupational Safety and Health Administration (OSHA) if there is a safety concern.

Keep in mind that there may be quarantine requirements in certain states for individuals who travel outside the state and return.

How to protect your business and your people

Despite continued uncertainties and what the future has in store, it's important to focus on what you can control at this point. There are specific actions you can take to protect your business and workforce.

Enforcing workplace health and safety protocols

Your workplace health and safety plan should be communicated routinely and put in writing. It should outline the ways you, as an employer, will work to limit COVID-19 exposure in the workplace. In addition to including federal, state, local, and any industry requirements, a plan should be as specific to your individual workplace and industry as possible. This includes:

• Outlining workplace hygiene requirements including best practices for proper handwashing.
• Disinfecting and cleaning in the workplace, including your schedule for cleaning and disinfection.
• Enforcing social distancing and workplace modifications, such as reorganizing the office layout, adding additional break schedules, and changing traffic flow in and out of the workplace.
• Employee symptom screenings you plan to conduct, such as workplace questionnaires or temperatures checks. If screening results are documented and retained, they become medical records and must be handled confidentially.
• Training and retraining all employees on safety plans, and properly documenting the training.

It's also important to understand federal OSHA requirements to report work-related cases of COVID-19, as well as state safety plan requirements.

Implementing travel policies

Employers that adopt travel-related policies may ask employees to disclose travel plans to evaluate the potential risk of COVID-19 to other employees or customers when they return. If you develop such a policy, it should:

• Provide notice that inquiries will be made about travel;
• Ask all employees to disclose the same travel information;
• Avoid discriminatory questions based on actual or perceived protected characteristics;
• Ask for honest and complete answers; and
• Communicate the potential consequences if an employee travels to a COVID-19 hotspot or location experiencing a resurgence of the virus.

Consult with legal counsel or an HR professional to help you avoid inconsistent policy enforcement, such as requiring quarantine after personal travel but not business travel.

Reassessing and preparing for potential changes

Developments in the pandemic — as well as local, state, and federal mandates implemented in response to them — can change at any time, so your business should be ready to pivot as needed. You can plan for potential changes by assessing the following:

• Determine how your business will operate. This includes identifying operations that can be suspended and how long they can realistically be put on hold. Prepare to change business practices to maintain critical operations.
• Reassess staffing once you determine operations that can be held off in the event of partial or full closure. If there's a possibility you need to permanently or temporarily reduce your number of employees, use objective selection criteria. It's strongly suggested that you consult legal counsel when considering a reduction in your workforce.
• Keep current on CDC and OSHA guidelines as well as requirements outlined by state and local authorities.
• Find alternative suppliers. The coronavirus' long-term impact on supply chains is sure to be significant. You may want to use local or regional suppliers, particularly since the lasting impact to changes in customer demand are also unclear.

Be prepared and focus on areas that you can control: maintaining workplace health and safety, finding operational efficiencies where you can, and providing support to your employees. Stay updated on the latest COVID-19 information for businesses.