A number of California counties began issuing shelter-in-place orders early this week, and it is expected that an increasing number of counties, including in different states, may issue similar orders in the coming days. The shelter-in-place orders generally instruct businesses to cease activities, except for minimum functions, such as processing payroll and employee benefits or facilitating employees’ ability to work from home.
Businesses or individuals who violate these orders may be guilty of misdemeanors resulting in fines or imprisonment. Moreover, noncompliant businesses run a greater risk of bad publicity, OSHA violations, labor and employment penalties, and civil liability.
However, certain “Essential Businesses” are “strongly encouraged” to continue operating. Essential Businesses are popularly understood to be businesses such as hospitals, pharmacies, grocery stores, gas stations, utilities, and banks. If you run an Essential Business, the chances are that you already know you fall into this category and can proceed with operations.
If you are not sure whether your business qualifies as an Essential Business, consider stopping operations immediately and make a plan for closing. Review any applicable shelter-in-place order to make sure there are no exemptions that might apply to your business. The shelter-in-place orders issued in California’s Bay Area identify at least 26 categories of Essential Businesses, including a broad category of “[b]usinesses that supply other essential businesses with the support or supplies necessary to operate.” This category could potentially encompass many different types of businesses.
If you think your business fits into this category of “businesses that supply other essential businesses with the support or supplies necessary to operate” or a similar exemption, consider stopping operations temporarily and sending a notice to the local authority of a timed-reopen. In the meantime, obtain letters of support from Essential Businesses that explain that your business provides necessary support or supplies to those businesses. If you are concerned that Essential Businesses would decline to provide letters of support or if an Essential Business declines to provide such a letter, you likely should stay closed.
If my business does not need to close (i.e., my business is an Essential Business or exempted business), do I need to do anything else?
Social Distancing Requirements
At a minimum, Essential Businesses or exempted businesses that remain open must comply with Social Distancing Requirements. In the shelter-in-place orders issued in California, Essential Businesses are required to comply with Social Distancing Requirements “to the greatest extent feasible,” which is an extremely ambiguous, yet high, standard. Accordingly, Essential Businesses that do not make efforts to comply with this standard risk not only misdemeanor liability, but future civil litigation and civil liability.
Social Distancing Requirements have so far been defined as “maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.”
Thus, at a minimum, businesses must ensure that they have implemented procedures and protocols for employees to comply with the above requirements “to the greatest extent feasible.”
Identification of Sick Employees
The Centers for Disease Control and Prevention (CDC) has issued guidelines that direct businesses to send sick employees home immediately. Failure to comply with these guidelines could eventually result in litigation, civil liability, OSHA violations, or violations of employment and labor codes. However, given that even asymptomatic employees can spread the illness, this guideline can be difficult to put into practice.
As a result, businesses should also consider implementing the CDC’s recommendation to certain regions in California and Washington and require temperature and respiratory health screenings before employees begin work. These health screenings should be given to every employee, not just those who are symptomatic. Of course, businesses must ensure that these screenings are conducted in a non-invasive, private fashion, and that any results are kept as confidential as possible. Ensure that employees are warned in writing and with posted notices that by coming to work and by recommendation of the CDC, employees will be monitored and screened for asymptomatic (non-obvious) symptoms, including the taking of temperatures.