On a map of the United States published by The New York Times that reveals the various stages of reopening across the country, 39 states are now colored in dark blue, indicating that businesses are almost universally opening their doors again. As of May 29, the other 11 states had, meanwhile, implemented regional reopening, where governors permitted counties or regions that met criteria for slowing the outbreak to open ahead of others.
While residents and businesses might be excited about moving ahead with their lives and helping to restore their languishing economies, there are also risks that come with reopening that businesses in particular need to bear in mind. One of these is that a politician giving the go-ahead to reopen will mean little in court if public health and safety officials disagreed with this decision.
“Many [businesses] that are opening up think that somehow by some governor’s fiat or by the president’s, that’ll protect them in a lawsuit and it won’t,” said Jim Hood (pictured), who served as Attorney General of Mississippi from 2004 to 2020 and is today an attorney at Weisbrod Matteis & Copley PLLC. “The standard of care is going to be what the doctors say it is.”
The Centers for Disease Control and Prevention’s (CDC) guidance on reopening includes proposed state and regional criteria that needs to be satisfied before proceeding to a phased comeback. One of these is a downward trajectory of documented cases within a 14-day period or a downward trajectory of positive tests as a percent of total tests within a 14-day period. Ensuring there’s testing capacity and healthcare system capacity are also important factors noted by the CDC, yet reports from many states reveal that many of the criteria are not being met as they reopen.
Alongside those factors, the CDC recommends that employers “develop and implement appropriate policies, in accordance with federal, state, and local regulations and guidance, and informed by industry best practices.” This is in regard to social distancing and protective equipment, temperature checks, sanitation, use and disinfection of common and high-traffic areas, and business travel.
The standards passed down from the CDC will be the ones that matter in lawsuits if a customer contracts the coronavirus after visiting a business or an employee gets sick at work and/or passes the virus to someone else, and in turn sues that business.
“There’s going to be a lot of litigation from employees, family members and customers if they don’t protect them,” said Hood, pointing to several meat plants in the US that have become coronavirus hotspots and where employers didn’t provide adequate protection. “I think a lot of businesses are going to get sued and there’s going to be a decade of litigation.”
This threat has already been recognized by top leaders, with Senate Republicans pushing for corporate immunity that would protect employers facing lawsuits if their workers get sick or die of COVID-19 on the job. Hood calls this plan “insane,” noting that it would take away access to the courthouse, “which is one of the last bastions in the United States where a little guy can go fight.”
Currently, Hood’s firm is advising policyholders to follow the advice of the medical community when reopening. “Just be careful – don’t let some governor get you out here and you think that that’s going to somehow protect you. It’s not,” he said.
Keeping in mind the risks facing employers who reopen, Gallagher recently broadcast a webinar featuring its experts’ insights on COVID-19 recovery and returning to the workplace – an important topic considering that in a survey of employers, the brokerage found that only one-third of organizations had developed a return-to-work strategy.
“The results are not surprising – this is a complex topic and something that requires a great deal of consideration and collaborative approach, bringing together leaders from various functional areas in your organization as well as in ours,” said Dean Clune, divisional VP, Gallagher Better Works, strategy development and execution.
An important component of a return-to-work strategy will be making decisions together with guidance from the local, state and federal authorities, and medical professionals.
“Our approach is one of a risk-based, multi-phase strategy,” said Michael Murray, national risk control and business continuity leader, Gallagher Global Brokerage, highlighting key resources from the government and medical community that businesses can couple with safety-related best practices within their workplaces, while also monitoring actively for unknowns, such as new outbreaks of COVID-19.
The first step of reopening involves taking all of that guidance into consideration when determining when to reopen the business and/or how to modify current operations.
“Understanding your eligibility to reopen is a critical first step that should be informed by credible resources, from the White House, Centers for Disease Control and Prevention, Occupational Health and Safety Administration, and directives by federal, state and local entities, which provide public health guidance,” said Clune, adding that Gallagher also has resources on-hand to help its clients.
Data plays an important role in supporting Gallagher’s resources, which includes a peak infection analysis, the goal of which is to summarize both actual and projected peak COVID-19 infections on a state-by-state basis using data aggregated from the Institute for Health Metrics and Evaluation. Also summarized in this tool are state and local guidelines around shelter-in-place timelines and non-essential business closures.
“While some states are already either reopening or at least starting to lift some restrictions, their infection curve may or may not have already peaked,” noted Alex Kreibich, VP, managing director of analytics consulting, healthcare analytics at Gallagher. “Where I think the true value lies in an analysis like this is understanding that the impact of COVID-19 is so varied based on geography.”
He added that this analysis allows organizations to understand that “for many companies, especially those with a diverse national workforce, returning to the workplace is not just looking toward a single date in the future,” and requires a more nuanced discussion, potentially involving multiple phases for national and multi-state organizations.