October 08, 2020

Protecting Workers When Reopening Small Businesses in the COVID-19 Pandemic

Alan S. Gutterman

Reopening a business during the pandemic is essential and inevitable, but it will certainly be a daunting process that will require consideration of how workers can be brought on board safely, how customer concerns will be addressed, and how everything can be done in a way that allows the company to survive financially. Larger companies have been investing significant amounts of resources on designing and implementing their reopening plans; however, small businesses don’t have the same resources but still need to address all of the same challenges. In this article, we’re going to take a look at how recommended “big company” strategies can be retooled to meet the needs of your small business clients.

First of all, your clients need to have a reopening plan that takes into legal and regulatory requirements and the specific needs and expectation of their workers. While the owners should be responsible for collecting all the necessary information, creating the plan should be a “family affair” that includes representatives of all of the company’s departments and activities. It is essential to have input from a group of employees who can express the divergent concerns that will inevitably arise in the workforce including views on remote working and scheduling and concerns about preexisting health conditions that increase vulnerability to the virus and caring for family members. For the smallest of businesses, this means everyone can be involved. If that’s not feasible, make sure that the team members are well-connected to other employees and also make sure that there are other means for all employees to provide input and suggestions and submit concerns (e.g., an anonymous hotline).

Each plan will be different; however, reference should be made to guidelines released by federal governmental agencies such as the Centers for Disease Control and Prevention (e.g., CDC Guidance for Businesses and Employers), Occupational Safety and Health Administration and Equal Employment Opportunity Commission, state and local governmental bodies, and any industry-specific protocols and guidance issued by nonprofit and inter-governmental organizations such as the Business & Human Rights Resource Centre, the Institute for Human Rights & Business and the OECD Centre for Responsible Business Conduct. If one exists, the company should participate in any group of similar businesses that may have been formed to share best practices on how to respond to the virus. This can be particularly valuable for smaller businesses that lack the resources for creating a robust plan on their own, but care must be taken to implement suggestions in a manner that is reasonable given the size of the enterprise.

When developing and implementing the plan, the owners should not only involve you, as their attorney, to explain legal requirements and risks, but also secure guidance from workplace health and safety consultants who can assist on preparing the workplace. The plan needs to cover protecting the workspace and lay out the details of a new workplace that is configured to address and reduce the risks associated with the virus. Among the issues and questions that need to be considered are:

  • The company’s policies regarding telecommuting, including how the company intends to monitor work hours and performance of employees while they are working outside the office
  • Social distancing, personal hygiene, use of masks and other personal protective equipment, reconfiguring workspaces, and cleaning
  • Managing and protecting common workspaces such as elevators and breakrooms
  • Manipulating work schedules to reduce crowding in the workspace
  • Health checks, which should be done by persons who have been properly trained and based on legal advice regarding the types of information that employers can collect from employees, how that information can be used, and how it should be protected to respect workers’ privacy rights
  • Protecting employees against risks associated with third parties entering the workplace (e.g., providing that the company’s policies apply to all visitors and requiring that outside sanitation teams follow safety protocols)

In addition to protecting the workplace, consideration needs to be given how and when the available worker talents are deployed. Companies need to consider when they will reopen for business and what activities will be required in order to provide the services that will actually be purchased by customers and clients. The answers to these questions will dictate which of your client’s employees are absolutely necessary to conduct business. Once that group has been identified attention can turn to the best way to deploy them. Can some of them work remotely? Can the company offer flexibility in terms of timing to those employees who must be in the facility to carry out their job activities? Are there any known risks associated with likely worker commuting patterns, such as the need to take long trips on public transportation? Which of the employees have special issues that need to be considered, such as the need to care for children and other family members or legally-protected characteristics and conditions such as age or disability? The company needs to be prepared to comply with reasonable requests for accommodations in a consistent manner and assist workers with exercising their rights related to extended leaves and childcare obligations. When making decisions about which workers to bring back, care must be taken not to act in a manner that might be seen as discriminating against particular groups (e.g., women, workers from certain racial or ethnic groups, or people known to have pre-existing health problems).

The company also needs to have a plan in place in advance to respond to news that an employee has symptoms of the virus or that a member of an employee’s family has virus-related health issues that require that the employee take time off from work to assist with care and maintenance of the household. When these types of situations arise, the company must act carefully but compassionately and document the response following consultation with applicable federal and state laws and regulations related to maintaining confidentiality of an employee’s health situation and sick and family leave. The legal requirements for paid sick and family leave need to be understood, particularly exceptions for smaller employers and for certain types of employees; however, employers may decide to offer more generous benefits. Whatever approach is taken, the rules must be clear and transparent so that employees know when they can leave the workplace due to illness and what they can expect from the company in terms of pay, benefits, and criterion for returning to the workplace once the personal health crisis has passed.

Deliberation, communication, patience, flexibility, and compassion are the essential elements for any plan that your small business client has for reopening its workplace during the pandemic. Trust is essential during this whole process, and company leaders need to be committed to transparency and consistently communicating with workers, customers, and others impacted by the company’s decisions and operations. Assisting clients in reopening in ways that are compliant with laws and voluntary standards of social responsibility is both a challenge and an opportunity for you as a business counselor. Small business owners have been devastated by the economic and social impact of the pandemic and many have understandably lost faith in the ability of their elected officials to provide support and clear guidance.

Business attorneys can play a unique role in filling in the gaps for their clients, serving as advocates for their causes and providing resources that will be valuable to all members of the community. For example, lawyers can collaborate with local bar associations to provide tools and tips for small business owners in the online world such as compiling a list of frequently asked questions and answers for owners accompanied by links to government resources. Now is also the time to visit small business owners in their communities—safely of course—to be sure that the valuable information that you have gets to the people who need it. However, in order to that it is essential that you become and remain informed about developments and there are comprehensive resources available from sources such as Practical Law (Business Reopening and Return to Work Checklist) and FindLaw. This is not something that will simply “disappear”: it is a long-term issue that you will need to integrate into your overall approach to serving you small business clients.

 

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    Alan S. Gutterman

    Founding Director, Sustainable Entrepreneurship Project

    Alan S. Gutterman is the Founding Director of the Sustainable Entrepreneurship Project (www.seproject.org).  In addition, Alan’s prolific output of practical guidance and tools for legal and financial professionals, managers, entrepreneurs and investors has made him one of the best-selling individual authors in the global legal publishing marketplace.  His cornerstone work, Business Transactions Solution, is on online-only product available and featured on Thomson Reuters’ Westlaw, the world’s largest legal content platform, which includes almost 200 book-length modules covering the entire lifecycle of a business.  Alan has also authored or edited over 70 books on sustainable entrepreneurship, management, business law and transactions, international law business and technology management for a number of publishers including Thomson Reuters, Kluwer, Aspatore, Oxford, Quorum, ABA Press, Aspen, Sweet & Maxwell, Euromoney, Business Expert Press, Harvard Business Publishing, CCH and BNA.  Alan has over three decades of experience as a partner and senior counsel with internationally recognized law firms counseling small and large business enterprises in the areas of general corporate and securities matters, venture capital, mergers and acquisitions, international law and transactions, strategic business alliances, technology transfers and intellectual property, and has also held senior management positions with several technology-based businesses including service as the chief legal officer of a leading international distributor of IT products headquartered in Silicon Valley and as the chief operating officer of an emerging broadband media company.  He has been an adjunct faculty member at several colleges and universities, including Boalt Hall, Golden Gate University, Hastings College of Law, Santa Clara University and the University of San Francisco, teaching classes on a diverse range of topics including corporate finance, venture capital, corporate law, Japanese business law and law and economic development,  He received his A.B., M.B.A., and J.D. from the University of California at Berkeley, a D.B.A. from Golden Gate University, and a Ph. D. from the University of Cambridge.  For more information about Alan and his activities, please contact him directly at alangutterman@gmail.com, follow him on LinkedIn (https://www.linkedin.com/in/alangutterman/) and visit his website at alangutterman.com, which includes an extensive collection of links to his books and other publications and resource materials for students and practitioners of sustainable entrepreneurship.