Coming Out of Hibernation: A Few Things to Consider When Reopening Your Business

We have collectively gone through what we hope to be a once-in-a-lifetime experience in which many of us have been working remotely, keeping our children from permanently injuring themselves, and preparing for a trip to Trader Joe’s as if we were part of a Navy SEAL team. COVID-19 has affected us in different ways, especially if we’ve lost a close relative or friend or contracted a severe case of the virus ourselves. The Midwest is seeing some improvement in terms of a lower daily number of new cases and deaths, but certain pockets continue to spike, and the crisis is far from over. As we gradually return to a hybrid normal, between the way it was before the coronavirus and the way it has been for the past few months, we must remain vigilant in our common-sense efforts to continue on a path where the outbreak is simply a bad memory.

Stay-at-Home Orders in Flux

The current state of stay-at-home orders is a hodgepodge. Wisconsin no longer has a statewide stay-at-home order, and local municipalities have adopted different variations. Illinois’ stay-at-home order is set to expire but will likely be extended to some degree. Indiana has adopted five stages to get the state back on track. You’ll need to constantly monitor your local and state requirements because they’re in flux.

What to Do if Your Business Can Reopen

If your business can reopen, you must take all reasonable precautions to protect your employees and the public. For Wisconsin employers, the Wisconsin Economic Development Corporation has issued guidelines to follow. You should review them closely and make sure you put procedures in place to adhere to them. The guidelines are available at https://wedc.org/reopen-guidelines/.

If your business is covered by the Occupational Safety and Health Act (OSH Act), you must comply with the applicable regulations. The Occupational Safety and Health Administration (OSHA) has published guidance for employers at https://www.osha.gov/Publications/OSHA3990.pdf. Wisconsin employers should continue to comply with recommendations from the Wisconsin Department of Health Services and the Centers for Disease Control and Prevention (CDC).

In terms of what has caused the worst spread of the coronavirus, the science is far from settled. While some are debating the use of face masks, there is evidence indicating that wearing them indoors in public spaces helps reduce the spread. Since many people are asymptomatic, wearing the masks is generally thought to help reduce spreading the virus from someone with the infection to others, as opposed to protecting the person wearing the face covering. If everyone wore a mask inside in public, however, it would likely lower the infection rate among everyone within breathing range.

Here Are Some Other Things You Can Do to Slow the Outbreak:

• Maintain social distancing inside and out.
• Open windows to the outside so the increased air-flow can more quickly disperse any COVID-19 particles.
• Look into upgrading your HVAC systems to improve air circulation.
• Keep employees working remotely if possible, which will reduce density and make it harder for the virus to spread.

You also should consider setting guidelines to prevent employees who may have contracted the virus from entering the workplace. Let them know what criteria must be met before they can return to work.

Returning Employees

Bringing employees back who were on leave or temporarily laid off will be challenging. Employees on protected leave (e.g., under either the Families First Coronavirus Relief Act or the Family and Medical Leave Act) may file retaliation claims if they aren’t rehired. As always, you should make employment decisions based on legitimate nondiscriminatory and nonretaliatory reasons.

Some employees may decide they would prefer to continue drawing unemployment benefits as opposed to returning to work. Generally, you may terminate anyone who refuses to return to work. Make those decisions on a case-by-case basis, however, and be sure they don’t have a legitimate reason for not returning to work immediately, such as being able to be placed on protected leave.

Because not all employees may be eligible to return to work, some who aren’t rehired may file discrimination claims. Again, it’s imperative to make reasonable non-discriminatory decisions that are well-documented in real time. Because the individuals will be experiencing severe hardship, you should handle the situations with the utmost compassion and respect.

Bottom Line

The last two months have been incredibly stressful for employers and HR pros. We are beginning to see light at the end of the tunnel, with lower numbers of cases and deaths and potential treatments and vaccines for COVID-19. But, unfortunately, we are not yet out of the woods. In many ways, the next six months to a year may be more difficult to navigate than the last few months. And don’t forget to protect your own well-being and health during your time on the front lines.

This article, slightly modified to note recent updates, was featured in the July issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.