Dealing with Essential Business Inquiries During COVID-19

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside the Section of Litigation paywall and available to all readers.

As the urgency of the COVID-19 crisis grows, attorneys and their clients should expect that employees and government officials will need assurances that the clients’ businesses are essential to public health and safety. Here are some tips you can give your clients on how to deal with these inquiries.

Dealing with External Inquiries

• Be ready to provide documents. It is critical that you are readily able to provide documents that support a showing that your business is an essential business. Over 30 states have released lists detailing what types of businesses are permitted to remain open. The documents you should be able to provide include:
  • A copy of your state’s designated list of essential businesses.
  • A letter written which includes the corporate letterhead. The letter should do the following:
    • Identify the critical sector your business belongs to.
    • Pinpoint why the work being conducted ensures continuity of functions critical to public health and safety, as well as economic and national security.
    • Provide the contact name and phone number of a person who the official may reach out to.
    • Note compliance with Center for Disease Control (CDC), Occupational Safety and Health Administration, and state and county guidelines.
• Carefully take local guidance into account. Businesses should carefully review their county’s shelter in place order as well as county websites, which often provide answers to frequently asked questions concerning essential business operations.
  • For example, some counties may implement local road closures or other measures to ensure individuals who are on our roads are essential workers. Additionally, counties may mandate businesses that conduct both essential and non-essential functions only carry out its essential business functions in their facilities.

Dealing with Internal Inquiries

• Educate employees on practical issues. In order to ensure that the business continues to operate smoothly, it is critical to explain to employees why your business is an essential business. Additionally, provide employees with a contact name and phone number of a person they can contact if they have questions about their employment. As these changes are likely, you should inform employees about any changes to the work schedules, cafeteria arrangements, and delivery protocols. If employees must travel to and from work, provide employees with letter on the corporate letterhead stating they are essential workers. Most importantly, educate employees on how they can reduce the spread of COVID-19. The CDC has created several action steps employees can take to protect themselves at work and at home.
• Notify employees of their obligations. There are many things you can ask of your employees to keep your business and others from spreading the virus.
  • You may require employees to self-report. The CDC has stated that at the very minimum, any staff should immediately notify their supervisor and the local health department if they develop symptoms of COVID-19.
  • You may ask employees about potential infection and related travel. The Americans with Disabilities Act (ADA) prohibits employers from asking employees about their health and medical conditions. However, the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) provides that during a pandemic, exceptions to the ADA’s restrictions on employer health inquiries allow employers to inquire about an employee’s potential infection with the disease and related travel.
  • You may require a temperature test. The EEOC and CDC have confirmed that measuring employees’ body temperatures is permissible given the current circumstances.
  • You may require employees adopt infection control procedures and wear personal protective equipment. The EEOC has advised that where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

The first step in implementing a communication protocol concerning COVID-19 and future pandemics is to anticipate the questions that stakeholders and officials may have. Here, attorneys should be able to identify why their client is an essential businesses and what changes employees should expect. 

Annie Chuang and Chris Johnson are partners at Shook, Hardy, & Bacon LLP’s San Francisco office.  

_{Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded 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, the Section of Litigation, this committee, or the employer(s) of the author(s).}