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Volume X, Number 186

July 03, 2020

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July 02, 2020

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Employers Grapple With Reopening As States Begin To Loosen COVID-19 Shutdown Orders

In recent weeks, the states have begun to announce strategies for reopening public life and business activities. Just as the shutdown orders took varying forms on a state-by-state basis, it appears the reopening orders will follow a similarly varied and state-by-state approach, creating new challenges for multi-state employers.  However, there are some trends starting to emerge that may help employers piece together a cohesive strategy for bringing their employees safely back to work.

In permitting businesses to reopen, the states have, in general, sought to craft orders intended to balance the state’s public health response with the need to allow employees to return to work and restart the economy. Their approaches to reaching this balance, however, have varied widely.

Some states have taken a more conservative path, waiting for more testing and additional public health data to decide when it is safe to begin reopening in phases. For example, Virginia issued a general plan on April 24 regarding the state’s strategy for reopening businesses.  The Forward Virginia plan notes that certain businesses may begin to reopen as soon as the state sees a downward trend in positive COVID-19 tests and hospitalizations, increased testing and tracing, enough hospital and intensive care capacity, and an increasing supply of personal protective equipment (PPE).

California is taking a similar approach. On April 28, California’s Governor issued California’s Roadmap to Pandemic Resilience, laying out a four-stage plan to reopen businesses. California’s plan will monitor health trends like hospitalization data, hospital capacity, PPE supply, testing, and other factors to determine when the state will start reopening certain businesses in four-stages.

Other states already have begun to implement a phased reopening plan. For example, as discussed previously, Texas Governor Greg Abbott issued an Executive Order GA-16 on April 17 to permit the reopening of non-essential retail services that could be provided through pickup, delivery by mail, or delivery to a customer’s doorstep. On April 27, the state took the next step in its reopening plan, when Governor Abbott issued Executive Order GA-18, which expands the categories of reopened services beginning May 1, to include in-store retail services, dine-in restaurant services, movie theatres, and shopping malls, so long as operations are limited to 25% capacity.

In Georgia, the Reviving a Healthy Georgia executive order issued on April 23, went further by allowing for the reopening of businesses including movie theaters, certain entertainment venues, gyms, hair and nail salons, bowling alleys, and tattoo parlors.

Inter-State Pacts Begin To Form

 While specific reopening plans have varied across states, there is hope that some level of consistency may occur across certain geographic regions.  Several states have recently announced that they will work together with other states in their region to exchange information and to create shared strategies for easing shutdown restrictions. These regional agreements to collaborate on reopening efforts include the following:

  • New York, New Jersey, Connecticut, Pennsylvania, Delaware, and Rhode Island announced the formation of a multi-state council of experts who will assist the states in creating a coordinated, regional approach to lifting their stay at home orders.

  • California, Oregon, Colorado, Nevada, and Washington announced an agreement, called the Western States Pact, in which the states would collaborate on a shared approach for reopening the economies in the region.
  • On April 16, Illinois announced that the state would partner with six other Midwestern states, including Michigan, Ohio, Wisconsin, Minnesota, Indiana, and Kentucky, to work in close coordination on a regional reopening strategy.

When Reopening, What Health And Safety Measures Will Be Advisable?

As the states work through their own approaches to reopening, there are some general strategies that employers can consider as part of their reopening plan in almost all jurisdictions to facilitate their employees’ safe return to work.

In particular, all employers should continue to review and comply, as applicable, with CDC and OSHA guidelines on safe practices in the workplace.  Below are some examples of precautions that employers may wish to consider implementing as states provide further guidance on their reopening plans and begin to allow employees to go back to work:

Hygiene and Health Measures

  • Disinfecting frequently used items and surfaces
  • Encouraging handwashing
  • Using available testing and/or implementing temperature checks
  • Prohibiting symptomatic or ill employees from reporting to work and providing sufficient paid leave to cover these absences
  • Requiring face coverings and other PPE be worn by everyone in the workplace

Social Distancing For Employees

  • Setting up six feet of separation between employee workspaces
  • Decreasing staffing levels or implementing staggered shifts
  • Setting up plexiglass shields and removing some seating from breakrooms
  • Facilitating remote working arrangements wherever possible
  • Minimizing employee travel

Social Distancing For Customers 

  • Enforcing maximum business occupancy limits
  • Limiting business to curbside pickup and delivery
  • Limiting in-person visits to appointment and reservations only
  • Designating separate entry and exit points to create one-way traffic through an establishment
  • Promoting cashless and receiptless transactions

These examples are only illustrative. Each business is unique and states likely will issue specific conditions and limitations pertaining to businesses within their borders, so it will be important for employers to carefully review state- and locality-specific orders and consult with legal counsel where they have questions.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 125

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About this Author

J. Drei Munar Associate Labor Employment
Associate

Drei understands that the business interests and long-term objectives of each client should drive litigation, and she approaches her role as an advocate with their goals in mind.

Her practice focuses on complex employment, wage and hour, and public accommodations litigation. Drei represents employers in the defense of wrongful termination, discrimination and harassment claims, wage and hour class and collective actions, and public accommodations disputes.

Before joining the firm, Drei gained valuable experience representing workers and victims of police misconduct in...

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Emily Burkhardt Vicente Employment Lawyer
Partner

Emily co-chairs the firm’s labor and employment group and has a national practice focusing on complex employment and wage and hour litigation.

Emily is an accomplished trial lawyer who defends employers in complex employment litigation, including California and FLSA wage and hour class and collective actions, California representative PAGA actions, employment discrimination class actions, and complex whistleblower matters. Her clients include major retailers, financial services and life sciences companies, manufacturers and transportation providers. In addition to her litigation practice, Emily regularly counsels clients on employment-related matters, including harassment and discrimination investigations, “me too” issues, fair-pay compliance, employment contracts and noncompetition agreements, and reductions-in-force.  Emily helps employers develop forward-thinking compliance practices that reduce wage and hour disputes and help mitigate other employment-related risks while keeping her client’s business goals firmly in mind.

Emily serves as co-chair of the firm’s diversity & inclusion committee, and is a member of the firm’s national associates committee. She also is a regular speaker on labor and employment, and class action issues and is a contributing author to the firm’s Employment & Labor Perspectives blog. Emily is admitted to practice before the United States Supreme Court, the United States District Courts for the Central, Southern, Eastern, and Northern Districts of California, the United States Courts of Appeals for the Ninth and Eleventh Circuits, the United States District Courts for the Northern and Middle Districts of Georgia, and the Superior, Appellate and Supreme Courts of California and Georgia.

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