COVID-19: Legalities of Reopening Businesess

After a few months, the governors of various states have relaxed their stay-at-home orders in the wake of perceived hopeful trends in the numbers of cases, hospitalizations, and deaths due to the coronavirus. In Arizona Governor Ducey’s order was rescinded effective May 16, 2020, and businesses have begun to reopen subject to certain guidelines. But the risk of COVID-19 still remains, and as businesses restart their operations they face several legal challenges.

Employees and Clients. An employer owes a duty to his employees to provide a safe working place. And clients who are at the business’s location with permission are entitled to safe premises free from dangers about which the business owners and its management knew, or in the exercise of reasonable prudence should have known. A danger can arise from exposure to surfaces on which the virus lurks, and people, even if asymptomatic, are carriers and contagious.

Businesses should consider adopting written policies to provide for the safety of employees and clients, including social distancing and regular disinfecting of surfaces upon which the virus can survive. These policies must be consistent with, and fully implement, state, county, local and federal guidelines. A retail business or restaurant has different requirements and guidelines than a professional office

Professional offices should give clients the option of meeting virtually through video-conferencing platforms such as Zoom or Go-to-Meeting. Businesses should consider having clients who visit in person (legally termed permitted invitees) complete a questionnaire in which they represent that they have been asymptomatic for 14 days and have not been in contact with anyone diagnosed with COVID-19 during that time period. Masks and hand sanitizing supplies should be available at the location for all employees and clients. If possible, employees should be given the option of working from home. And if they are sick they should be required to stay at home. Hard surfaces, such as conference or restaurant tables, should be cleaned and disinfected after every meeting or meal. Posting signs that remind clients, patrons and employees of these policies and important government guidelines is also a good idea.

Contractual Obligations.Contractual obligations contained in leases and loan agreements may impact the decision on when and how to reopen. Leases often contain provisions that require a tenant to continually operate. Loan agreements may contain similar provisions. Force Majeure clauses may impact the analysis or should be considered in new agreements. Review of these documents should precede and inform the decision to reopen.

Payment.  Many states have adopted requirements especially applicable in the retail arena governing payment. For example, Arkansas requires either contactless payment systems or the disinfecting of all payment pads, pens, and styluses after each use. New Hampshire suggests businesses should use electronic payment methods, but permits retailers to continue to accept payment by cash or check. Regardless of the method of payment, most reopening orders stress the importance of frequent cleaning and disinfecting of electronics, checkout lanes, and shared resources.

Please let us know if we can be of further assistance to provide you with peace of mind on these and other matters during these challenging times.

Stay safe. You are important!

Note: Arizona’s order does not require businesses to reopen. But here are some useful links for particular kinds of businesses and gathering places:

Restaurants providing dine-in service
Barbers and Cosmetologists
Gyms and Fitness Providers
Spas, massage therapists and personal services
Places of Worship

Written by Attorney David B. Goldstein,

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