Jane Muir Shareholde J. Muir & Associates P.A. Miami

As government debates the timing of permitting business operations to reopen, while still seeking to protect the people from COVID-19 infection, so-called "nonessential" businesses need to consider how they can protect employees and customers. Just like a company can be held liable for injuries, there is likely risk of liability for viral infection. What separates an accident from an act of negligence is the standard of care required given the situation. Failing to exercise reasonable care to prevent the spread of coronavirus could cause injury or even death. Given the circumstances, what is reasonable care?

This issue was anticipated by the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) and the U.S. Department of Health & Human Services (HHS) in early March. Under the Occupational Safety and Health Act, an employer has a legal obligation to provide a safe and healthful workplace. OSHA can cite or fine employers under the "general duty clause," that requires an employer to protect employees against "recognized hazards" to safety or health which may cause serious injury or death. Coronavirus is certainly a recognized hazard. To help businesses comply with the law, the agencies created a "Guidance on Preparing Workplaces for COVID-19" to help companies respond in the event of coronavirus in the workplace. The city of San Francisco has created a handy template, also available in Spanish. The same precautions that apply to protecting employees can be used to protect customers.

Clean and Disinfect

If your current cleaning schedule is only once a week, it is time to ramp up. High traffic areas, like door handles, break rooms, and bathrooms, should be disinfected regularly with a cleaning agent on the Environmental Protection Agency's list of effective products. Employers should also provide disinfectant, soap, and hand sanitizer effective against COVID 19. If you have carts or baskets, provide disinfecting wipes in prominent locations.

Check for Symptoms

The virus's symptoms include respiratory infection with fever, cough and difficulty breathing. According to the U.S. Center for Disease Contro and Preventionl, these symptoms may appear in as few as two days or as long as 14 days after exposure. According to recent guidance from the Equal Employment Opportunity Commission, (EEOC), Employers are permitted to, and should, check their staff for symptoms, like fever, subject to ADA confidentiality requirements. When a staff person has any of the symptoms that may be coronavirus, the employer should send them home immediately.

Social Distancing

In order to fulfill the duty of care as to employees, all open or reopening businesses should create a "social distancing protocol." This policy should be circulated among employees and prominently noticed with signage at entrances to inform anyone with a fever or cough not to enter. Employees should be encouraged to work from home as much as possible, and work stations should be separated by at least six feet. Asymptomatic people should maintain six-foot distance from others, avoid unnecessary physical contact, and wear masks or other face coverings.

Prevent Crowds

Whatever you can do to ensure that people can (and will) stay apart is a smart move. For example, you can limit the number of employees, customers or clients in the premises to permit everyone to maintain a six foot distance from one another. Assign an employee to maintain capacity and warn people to stay apart, and place notices. Split up order and pickup locations. Limit the number of goods per person. Mark floor with tape or other signs to maintain distance.

The hardest part about reopening while following the recommended safety precautions is the varying level of cooperation from members of the public. Many are well-intentioned, but unaware of personal space. After all, we live in arguably the global capital of public displays of affection, where we offer hugs and kisses for strangers. Frequent reminders, in the form of notices, and individual conversations with employees and guests are helpful, but in extreme circumstances, it may be necessary to deny access or service to uncooperative people. When weighing the question, the important thing to consider is, "what a reasonably prudent person would do under the circumstances?" Making prudent decisions will help avoid liability and enable you to reopen safely.

Jane Muir is a business attorney, focusing on commercial litigation, business transactions and general counsel. She is president-elect of the Miami-Dade County Bar Association. She may be reached at [email protected]