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  • Writer's picturecmfugate

Opening Back Up

Many states and localities are lifting or beginning to lift their stay-at-home orders and allowing businesses to open back up. Most of the media's focus has been on the changes in restaurants, but every business is going to have to make adjustments including providing or requiring personal protective equipment (PPE), creating physical barriers to separate employees from customers, testing employees or customers, and more.

Many employees will be required to wear a mask or face covering, and businesses will have many options to consider when complying with these regulations. Will your employees have N95 masks, surgical masks, or cloth masks? Who will provide those masks? If they are N95, how do you comply with regulations regarding respirators and the training and evaluation required to use those masks? What is you require surgical masks and an employee chooses to wear a N95 mask? Are you still required to follow the regulations for respirators?

Will you be required to create a physical barrier between your employees or some of your employees and your customers? What can you do to limit your liability for installing ineffective barriers? Which employees do you put behind barriers and which employees are freer to interact with customers? These decisions and your documentation of these decisions can either expose you to liability for discrimination and for the illness or can insulate you from liability.

Are you going to test your employees or customers for Covid-19 either through temperature checks or a more invasive test? The federal government has issued regulations allowing you to test your employees. However, the way you do the tests can certainly expose an employer to liability. Additionally, are your employees on the clock as they wait to be tested? Do you need to take your employees' temperatures in separate locations to keep their medical information private? What do you do with your records of these health screenings?

Finally, there are legal considerations of when, how and who you bring back first. Employers need to communicate their intentions clearly with their employees. Employers need to be mindful of the potential appearance of discrimination when selecting who to bring back. Even though older people are more susceptible to complications from Covid-19, that does not (currently) provide a liability shield for age discrimination. What if an employee does not want to return to work because he or she is afraid of getting sick? Can you terminate that employee? Should you terminate that employee? What about that employee's unemployment claim? Will it affect your unemployment tax rate?

There are many questions that businesses and employers need to consider as they plan for their reopening. There is guidance available online but businesses are in a world with few regulations and many questions. The best solution at this point is to document everything. Document any source you use to make decisions. Document any conversations you have with your attorney or business advisor. Constantly keep up to date with the CDC guidelines and state and local regulations, and document that you are staying up to date.

If you have any questions about what you should be thinking about as you plan to reopen your business contact Craig Fugate at 317-796-4322 or

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