Our clients, from restaurants to doctor’s offices to manufacturers and hospitality companies are laying the groundwork for restart. Make sure your plan is complete. We have already helped a number of our clients with legally compliant plans and we want to help you. Please contact us at (480) 733-6800 to schedule your business restart plan review.
- Follow local, state, and federal Guidance. Governments at the local and especially states national level, including the Centers for Disease Control and Prevention (CDC), the U.S. Department of Labor, the U.S. Occupational Safety and Health Administration (OSHA) and the Arizona Department of Health Services have issued various orders and policy statements and regarding social distancing, phased business openings, and plans to find and track infected employees, contract tracing and other practices designed to minimize the spread of COVID-19 and the SARS-CoV-2 Virus. The CDC and OSHA have put many guidelines in place, aimed at reducing exposure to the virus, which should be followed closely. Avoid administrative complaints and citations by adhering to these standards consistently and continually. It’s important that you are complying with the standards that you proclaim to follow. The Trump Administration’s sudden rejection of the CDC guidelines and refusal to implement them, combined with its recent emphasis on state-level measures, has added a new wrinkle to this. From a legal compliance perspective, businesses should now look first to official local and state guidelines, followed by official guidelines of Federal agencies other than the CDC, even though the CDC guidelines still have scientific value and can provide useful risk management tools.
- Train employees. Update your business policies and guidelines appropriately, and be sure that all employees are familiar with them and prepared to comply with them accordingly. For those employees who interact with clients, customers, business partners or other visitors, be sure they are trained to respond accurately to any questions that those visitors might have. Post this information when and where necessary. Be sure your policies and procedures are visible and available to employees. Make policies and procedures simple and succinct, so that there are not questions about how employees follow and communicate these.
- Manage and decrease potential liability. When it comes to social media, less can be more. Instead of overwhelming your sites with data, be sure that followers understand that your business is following government guidelines and has a plan. Online and on physical property it is important to recognize your risk of liability should a client, customer, business partner or visitor have a virus-related complaint. Your insurance may only have limited coverage, most likely does not specifically relate to this unprecedented possibility for virus-related incidents, and may actually expressly exclude coverage for such virus-related incidents. Be sure that you are not increasing risk by communicating clearly and receiving written verification regarding allocation of risk of exposure to COVID-19 and SARS-CoV-2. Disclaimers, notices and releases are critical.
- Do not over-promise and under-deliver. Do not overstate the steps you are taking in your advertisements, social media posts, or posted signs and be sure that your employees accurately answer questions about what you are doing to limit the risk of COVID-19 exposure. Statements of fact – those that can be proven to be true or false – provide greater clarity to customers but also pose a higher risk in misrepresentation and false advertising claims. When in doubt, use more aspirational or qualified statements.
- Review indemnification obligations and understand if those obligations are insured. Be sure to review key contracts with third parties, such as vendors, testing companies, cleaners, and marketing agencies, particularly as those contracts relate to liability obligations that they have to you. Understand your third-party partners’ insurance as well. If you are relying on them to indemnify you for or otherwise protect you from potential claims, you need to be sure that they have the appropriate coverage for the risks, and that such coverage applies to you. Also, be sure to review the liability and indemnification obligations you have to others, such as those to whom you supply products or for whom you perform services. Be aware that companies with whom you conduct business may increase those obligations in the wake of COVID-19. Be on the look-out for changed contractual agreements, purchase orders, or terms of service, and be especially sensitive to force majeure provisions. If you have an indemnification obligation, make sure that you have the appropriate coverage for that risk. Oftentimes, the coverage provided for indemnification obligations is less than the coverage that you have if a claim is asserted directly against you, and some liability policies entirely exclude coverage for such indemnification obligations.