October 27, 2020 6 minutes to read ∙ 1400 words

Protecting Workers in the Pandemic: How to Advise Small Business Clients about Reopening

By 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 in designing and implementing their reopening plans; however, small businesses don’t have the same resources but still need to address all the same challenges. This article will look at how recommended “big company” strategies can be retooled to meet the need of your small business clients.

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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.

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.

Halfpoint Images via Getty Images

Crafting the Reopening Plan

First of all, your clients need to have a reopening plan that considers the legal and regulatory requirements and the specific needs and expectations of 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, concerns about preexisting health conditions that increase vulnerability to the virus, and the need to care 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 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., the CDC’s Interim COVID-19 Guidance: Businesses and Employers), the Occupational Safety and Health Administration, and the 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 and Business, and the OECD Centre for Responsible Business Conduct. 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 in preparing the workplace.

Reopening Plan Essentials

The plan needs to cover protecting the work space 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 work spaces, and cleaning;
  • managing and protecting common work spaces such as elevators and break rooms;
  • manipulating work schedules to reduce crowding in the work space;
  • health checks, which should be done by persons who have been properly trained and which should be 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; and
  • 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, the plan must specify 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 clients’ 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 must be prepared to comply with reasonable requests for accommodations in a consistent manner and assist workers with exercising their rights relating 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 preexisting health problems).

The company also needs to have a plan in place 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 maintaining 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 relating 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 and benefits and criteria 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 must commit to transparency and consistency when communicating with workers, customers, and others impacted by the company’s decisions and operations.

Your Role as a Lawyer

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 for owners, accompanied by and answers and 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 you have gets to the people who need it. However, to do 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. The issues the accompany reopening will not simply “disappear”; you will need to integrate them into your overall approach to serving your small business clients.

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Alan S. Gutterman is the founding director of the Sustainable Entrepreneurship Project, a California nonprofit public benefit corporation with tax-exempt status under IRC section 501(c)(3) formed to teach and support individuals and companies, both start-ups and mature firms, seeking to create and build sustainable businesses based on purpose, innovation, shared value, and respect for people and planet. Alan is also currently a partner of GCA Law Partners LLP in Mountain View, California, and a prolific author of practical guidance and tools for legal and financial professionals, managers, entrepreneurs, and investors on topics including sustainable entrepreneurship, leadership and management, business law and transactions, international law, and business and technology management. He is the co-chair of the ABA GPSolo Division’s Business Law Committee and co-editor and contributing author of several books published by the ABA Business Law Section, including The Lawyer’s Corporate Social Responsibility Deskbook, Emerging Companies Guide, third edition, and Business and Human Rights: A Practitioner’s Guide for Legal Professionals (forthcoming fall 2020). More information about Alan and his work is available at the Sustainable Entrepreneurship Project website and his personal website at www.alangutterman.com. A longer version of this article was originally published on May 20, 2020, on the website of the Sustainable Entrepreneurship Project, which includes additional information on sources and other resources.

Published in GPSolo eReport, Volume 10, Number 3, October 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.