Many companies were caught off-guard in the spring when diagnoses of COVID-19 multiplied rapidly and forced businesses to close or drastically change their policies with little warning. Now companies that have reopened must prepare for the future. As we have seen in recent weeks, resurgences may occur at any time in different parts of the country. And epidemiologists have warned about a potential second wave of infections in the fall.

Businesses across the country are facing challenges, including lawsuits, as they grapple with how COVID-19 has impacted their operations, work forces, and supply chains. The wave of litigation is rising, and it appears that no industry is immune. Schiff Hardin’s Coronavirus Task Force is publishing this series to identify of-the-moment issues and potential liabilities facing businesses as they begin to re-open, transform their processes, and face the new reality.

In our third post in this Reopening and Readjusting series, we share proactive steps business can take to prepare for future infections.

Planning for a COVID-19 Diagnosis of Employee or Visitor

  • Develop written procedures for a COVID-19 diagnosis in advance. Even if a business takes every possible precaution, visitors or employees may still test positive for COVID-19. As we have learned this spring, the virus spreads easily in certain circumstances. Companies should not be caught flat-footed if this happens in their workplaces.
  • Devise a heightened cleaning plan to implement when someone tests positive. Businesses should plan ahead and be ready to institute any additional necessary cleaning procedures if an employee or customer tests positive for the coronavirus. Companies should either work with their regular cleaning provider beforehand to ensure that the provider can meet the additional cleaning protocols or identify a different contractor that will be available for heightened cleaning, particularly on short notice. Work with that company to determine what type of cleaning should be done based on the circumstances.
  • Plan for staffing changes in advance. Determine staffing strategies in advance if one or more employees must be quarantined. Planning ahead may help to prevent closures if many staff are infected.
  • Determine whether customers should be notified of a positive COVID-19 diagnosis. Depending on the type of business, companies may have a practical way to advise visitors that they may have encountered another person who has been diagnosed with COVID-19. Appointment-based businesses may have records of who was present or near the person who tested positive. But businesses should balance notifying people against needlessly raising alarm and compromising the privacy of the person who tested positive. This applies particularly for businesses that are covered by the Health Insurance Portability and Accountability Act (HIPAA). Companies that are considering notifying visitors of possible exposure to a person who tested positive may wish to consult an attorney to ensure they undertake these communications in a thoughtful way that complies with privacy laws and regulations.
  • Decide in advance what scenarios may call for a temporary closure of the business. Rather than making decisions once faced with a COVID-19 diagnosis, businesses will be able to react more efficiently if they decide in advance what circumstances may call for temporary closure, whether for additional cleaning or staff isolation. Clear-eyed forethought likely will create better outcomes than deciding under pressure.
  • Prepare for media inquiries in advance. As marketing professionals know, media outlets may run stories without giving a company much time or advance notice to comment or prepare a statement. Not all contingencies can be anticipated, but companies should explore more likely scenarios, such as the positive diagnosis of an employee or visitor. Abiding by all necessary privacy laws, a company should be ready to issue a brief, clear statement that explains what happened, what the business is doing to address the diagnosis, and what steps the company has taken to keep other employees and visitors safe. Based on potential legal ramifications or reputational damage, a business should seek counsel from an attorney if such a diagnosis occurs. As always, companies need to ensure that their communications are accurate not just to inspire confidence in the business, but also to avoid running afoul of securities laws.

Preparing for a Potential Resurgence in the Coming Months

  • Develop a plan for closing. In March, many businesses were forced to close without warning and with no business continuity plans in place. Companies should have clear policies in place if state and local governments order additional closures amid a resurgence. Planning ahead will both help reduce the costs of physical closure and the likelihood of liability.
  • Ensure that technology needs are met. Some businesses were ill-equipped for sudden work-from-home scenarios earlier this year. Companies should plan ahead to ensure that their employees are prepared to work efficiently if there are closures in the coming months. Businesses also should ensure proper privacy and data protection policies for remote work, and have policies in place that provide for the reimbursement of employees for all necessary expenditures or losses incurred when they are working remotely.
  • Consider purchasing supplies in advance. With products like sanitizer and masks currently available, companies may want to stock up to avoid the supply chain problems that occurred in the spring. If keeping the products for a long-term stockpile, the company should ensure at regular intervals that they have not expired.
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Photo of Brett F. Clements Brett F. Clements

Brett F. Clements is a member of the Product Liability Group. He has defended clients on an array of matters, including catastrophic losses, consumer class actions, and in high-profile multidistrict litigation. Brett also has experience in all facets of eDiscovery, including document collections…

Brett F. Clements is a member of the Product Liability Group. He has defended clients on an array of matters, including catastrophic losses, consumer class actions, and in high-profile multidistrict litigation. Brett also has experience in all facets of eDiscovery, including document collections, negotiation of ESI protocols, review strategy, and in the oversight of productions. Recognizing the interplay between the future of litigation and new technology, Brett closely follows developments in both product liability law and eDiscovery, focusing on the scientific and technical aspects of these fast-paced areas of law.

Photo of Michael P. Wissa Michael P. Wissa

Michael works with a wide range of corporate clients and employers in all phases of labor and employment law, including representing management in matters pertaining to collective bargaining, employee discipline, harassment and discrimination, onboarding and separation of employment, wage and hour laws, and…

Michael works with a wide range of corporate clients and employers in all phases of labor and employment law, including representing management in matters pertaining to collective bargaining, employee discipline, harassment and discrimination, onboarding and separation of employment, wage and hour laws, and employment contracts.

Photo of Jeffrey D. Skinner Jeffrey D. Skinner

Jeff focuses his practice in product liability and toxic torts, complex litigation, class action defense, and internal investigations. He has represented a diverse group of clients in a variety of industries, including manufacturing, financial services, telecommunications, transportation, technology, and health care. He has…

Jeff focuses his practice in product liability and toxic torts, complex litigation, class action defense, and internal investigations. He has represented a diverse group of clients in a variety of industries, including manufacturing, financial services, telecommunications, transportation, technology, and health care. He has practiced in trial and appellate courts throughout the United States, as well as before the Federal Trade Commission and the Department of Housing and Urban Development.