Sozi Tulante and Ryan Moore of Dechert.

As COVID-19 swept across our country, so too did a uniform response by local and state governments: mandate strict social distancing policies, order citizens to remain at home except for essential activities and close all businesses deemed nonessential. Using our experience working closely with businesses who were forced to shut down, we have identified some practical steps businesses reopening should consider. Reopening will not be without risk. Indeed, the likelihood that cases of COVID-19 will rise as a result of increased business and social activities remains. We thus stress a flexible approach to reopening. Businesses should consider not only labor and employment issues, but also critical practical concerns.

A careful reopening approach is crucial because the risk of litigation remains. For example, there are recent lawsuits against Smithfield Foods, one of the nation's largest meat processors, asserting claims arising from its COVID-19 response. See, e.g., Benjamin v. JBS, No. 200500370 (Pa. Ct. Com. Pl. Phila. Cty.) Although such cases raise challenges about causation (i.e., whether and how plaintiffs can prove exactly when and where they contracted COVID-19) and the role of government regulatory agencies, they certainly inform the risk environment for businesses as companies shift priorities toward reopening.

Perform an Overall COVID-19 Self-Assessment Before Reopening

Prior to designing any reopening plan, businesses should perform a self-assessment regarding their COVID-19 response. This assessment should be separate and apart from the periodic review agencies like the Centers for Disease and Control Prevention (CDC) suggest occur on a regular and going-forward basis. see, CDC, "Coronavirus Disease 2019 (COVID-19), Infection Prevention and Control Assessment Tool for Nursing Homes Preparing for COVID-19" (last updated May 8). Rather, as an initial step, businesses should reflect upon what worked and did not work since the shutdown, and also what they learned.

This self-assessment should focus on several nonexhaustive issues, each informed by the experiences companies had during the initial round of shutdown orders. First, businesses should evaluate their overall COVID-19 response, including efforts and achievements in shutting down or significantly modifying in-person operations; transitioning to remote or telework operations; instituting CDC or other relevant guidelines to protect the health and safety of employees and customers; and the effectiveness of communication to relevant stakeholders in real time.

Second, businesses should reflect on the most significant lessons learned from the shutdown. Those lessons could potentially span across a business's operations, and include realized improvements to workforce mobility; discovery of real value return in expansion of remote and telework capabilities; cost-cutting opportunities arising from using technology to eliminate unnecessary work travel; and better allocation of human resources to align with business needs.

Finally, businesses should consider the extent to which they can (or should) implement modified longer-term policies to protect against COVID-19, generally, and prepare for further changes to business operations, specifically. Guidance abounds regarding how businesses can and should properly reopen, typically focused on minimizing opportunities for personal interaction and increasing health and safety protocols. See, e.g., Center for Disease Control and Prevention, "Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes" (May 7, 2020), Gov. Tom Wolf, "Process to Reopen Pennsylvania" (last updated 5:45 p.m. June 4, 2020). But beyond these efforts, business should take time to be forward-thinking, utilizing the experience and knowledge gained from the shutdown period to craft a reopening plan tailored not just to the ongoing crisis but the idiosyncratic needs of their particular operations.

Develop a Forward-Looking Reopening and Compliance Infrastructure

Before establishing a formal reopening plan, businesses should develop significant infrastructure not only to create but to implement and oversee that plan going forward. Specifically, businesses should designate a multidisciplinary COVID-19 infrastructure team with overall design, implementation, reporting, compliance and continuing self-assessment responsibilities. Business should assemble a diverse coalition, with participants from human resources, operations, business and legal divisions. The infrastructure team should meet regularly; and should quarterback not just the reopening process but all COVID-19-related-responses, compliance and operations going forward.

The infrastructure team should work with management in developing and implementing a reopening plan. Part of this process should be revising any preexisting policies as necessary (informed by the business's self-assessment), procuring necessary equipment or technology (including personal protective equipment (PPE) for employees or customers), and informing and keeping open communication lines with employees, customers, clients, suppliers, and insurers. Finally, given the continually rapidly changing landscape, the infrastructure team should continually monitor local, state and national guidance and the overall regulatory landscape.

Develop a COVID-19 Reopening Plan

With ample guidance from governments, regulatory agencies, law firms and business groups, businesses will have many resources on how best to structure reopening plans. First, those plans should be focused on worker safety. The CDC, the Occupational Safety and Health Administration (OSHA), and governors' offices and departments of health have all issued guidance and recommendations on what a business' reopening plan should look like. Businesses should prioritize maintaining social distancing and supporting telework where possible; require and, if possible, distribute PPE to workers and customers; temperature- and symptom-screen workers before they enter the workplace; consider staggering employees and staffing; close or restrict access to common spaces such as cafeterias and break rooms; increase facility cleaning and disinfection; prohibit nonessential business travel; install signage and other reminders in in-person facilities articulating COVID-19 safety procedures and policies; and monitor and evaluate compliance with and the effectiveness of social distancing practices. Businesses should also develop procedures for confidential reporting of COVID-19 symptoms, managing employee absences and requests for leaves of absence, and responding to confirmed or potential workplace exposures. These policies and efforts should be applied uniformly to employees, vendors and customers, where applicable.

Plan for Possible Return to Shutdown

Even as businesses move toward reopening, the risk that COVID-19 cases will rise remains high. If cases rise, governments may reinstitute full-scale or even limited shutdown orders. It is imperative that as businesses reopen they contemporaneously implement plans preparing for a possible return to closure. Those plans should be informed by the lessons learned and COVID-19 self-assessments.

First, businesses deemed "nonessential" or not a part of critical infrastructure that were permitted to remain open after applying to do so through their jurisdiction's waiver or other application processes should consider whether to take additional or different steps than they did during the initial shutdowns. Some of these businesses, though essential, struggled to gather necessary documentation to support their case for remaining open before the often tight deadlines imposed expired. Accordingly, businesses should implement action now to prepare for such a process in the near future, including getting waiver or application materials together well before the issuance of another shutdown order. Specifically, businesses should review whether those applications required or permitted supporting documents.  For example, if an otherwise "nonessential" business is a critical part of an "essential" business's supply chain, letters or affidavits explaining such are invaluable parts of any application. In our experience, these types of letters go a long way in building a case to remain open.

Second, businesses should evaluate the successes and issues they had in closing physical locations and transitioning to a remote workforce, if they had to do so in their jurisdiction. In doing so, businesses can prepare for an effective and timely switch to remote operations, with little interruption in day-to-day operations. For instance, if a business was forced to close its physical location and transition to a remote workforce during an earlier order, it is likely it will be forced to do the same upon another shutdown order. Additionally, for businesses that had to close, on-the-ground learning surely was important in informing the needs of workforces and customers in facilitating successful remote operations. All of these factors and more should be taken into account in a proper plan to make quick and easy transition to effective remote operations as successful as possible.

Third, businesses should weigh the possibility of a return to closure when rehiring furloughed employees or expanding their workforce. Businesses should have plans in effect to deal with possible future shutdown orders, which may require returning to a smaller workforce. These plans may require implementation of another furlough process or other employment-related solutions, so as to support and engage the returning workforce. For example, any business that had layoffs or furloughs during a lockdown may seek to rehire some of these employees upon resuming physical operations. But given the impending risk of another shutdown, businesses should have plans in effect to deal with that risk, and the risk of reinstituting additional lay-offs or re-furlough. Businesses will thus need to have detailed strategies to deal with these types of employment decisions, including whether and how to institute necessary support programs. Indeed, those plans may very well inform businesses' rehiring plans, including but not limited to businesses rehiring in phases rather than all at once or even instituting a smaller-than-normal workforce upon reopening.

Sozi Tulante, a partner at Dechert, focuses his practice on white-collar criminal defense. A former Philadelphia city solicitor, Tulante draws on his extensive experience working in multiple areas of government to represent clients in high-profile litigation matters involving sensitive white collar litigation and investigations.

Ryan M. Moore is an associate in the firm's litigation group. He represents and advises corporate and individual clients in connection with contract, fiduciary duty, regulatory, and other complex commercial matters in state and federal court, with a focus on various Pennsylvania trial and appellate matters.