Businesses That Are Temporarily Closing Worksites Face Hard Choices

Allen Smith, J.D. By Allen Smith, J.D. July 6, 2020
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Sign on a business door saying sorry we're closed

​Some reopened worksites are temporarily shutting their doors again as a result of state orders or local spikes in COVID-19 infections. These businesses are facing tough choices over when to close in one area while remaining open elsewhere and whether to furlough or lay off employees who can't telecommute.

Three states—California, Florida and Texas—have implemented new policies that partly restrict restaurant or bar service, reported The Washington Post on June 30. Nine others—Arkansas, Delaware, Idaho, Louisiana, Michigan, Nevada, New Jersey, New Mexico and North Carolina—have postponed or slowed reopening plans, it added.

Apple has announced it is reclosing 77 stores, CNBC reported.

The United States had approximately 44,766 new cases of coronavirus on June 30, according to The Wall Street Journal. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, told the Senate on June 30 that new coronavirus cases could rise to 100,000 a day if people continue to ignore advice on social distancing and face masks.

While some states revisited their reopening plans, Florida Gov. Ron DeSantis said the state was "not going back" on reopening, The Wall Street Journal reported. He said the increase in cases was due to young people socializing, rather than people visiting businesses.

Infection History

The safest and easiest course in deciding whether to reclose worksites is to follow state and local government pronouncements, said Robert O'Hara, an attorney with Epstein Becker Green in New York City. Localities "will be following inspection spikes and hospitalization usage closely," he noted.

"Another important consideration, if you don't have a government edict, is the infection history in your workplace," O'Hara said.

As businesses have reopened, coronavirus infections have emerged in some locations, either from work-related or outside activities. "It is very difficult to tell the difference, but the impact [on the workforce] would be the same," he said. "If infection occurs and is not isolated—more than a few cases in a location—an employer would be hard-pressed to stay the at-work course."

Employers may need to quickly shift back to remote work, to the extent possible. "Employers should be giving this a lot of thought as they start to re-engage and congregate," O'Hara said.

In addition to infection history, employers should account for the layout of each location when considering whether to remain open. One site may offer the space to allow for social distancing, while another may not, commented Emma Schuering and Erin Schilling, attorneys with Polsinelli in Kansas City, Mo., in an e-mail.

"Employers also need to look to the job functions performed in each location," they added. "One location may include job functions that can be performed through telework, while another location includes job functions that can only be performed onsite."

Multistate Employer Considerations

Multistate employers should carefully monitor the level of transmission in every state in which they do business and any state or local closure order, said Molly Batsch, an attorney at Greensfelder in St. Louis. Whether an employer stays open may vary by county within a state.

"To minimize confusion, employers should be sure to communicate with employees about why heightened precautions are being used at different locations and why some locations are open while others are not," she noted.

When temporarily closing due to high infection rates in the workplace, even without any government closure order, be consistent in the criteria applied in the decision, O'Hara said.

For example, if a certain percentage of COVID-19 infections triggers the closure of a site in one locality, the same percentage should result in the closing of other facilities. The trigger might be a percentage of the workforce impacted, actual numbers of cases or some combination thereof, he said.

If an employer needs to keep one site open while closing another, it should have a compelling rationale for doing so because employees at the location that remains open likely will challenge the decision, he said.

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Liability Issues

Might there be potential liability in keeping offices or worksites open despite the rising number of coronavirus cases?

"There is always the possibility that employees will attempt to bring suit if someone contracts COVID-19 and asserts that the exposure occurred in the workplace," said Karen Glickstein, an attorney with Jackson Lewis in Kansas City, Mo., and Overland Park, Mo., and a member of the Employment Law Committee of the International Association of Defense Counsel. That's why it's important for employers to bring back to the workplace employees who can't work remotely only if appropriate personal protective equipment is available and all local and state directives are met.

To the extent that COVID-19 is considered an occupational injury or illness covered by workers' compensation statutes, any tort claim, such as wrongful death, for compensatory damages is likely to be barred, said Michael Kantor , an attorney with Weiss Serota Helfman Cole & Bierman in Fort Lauderdale, Fla.

But he added that "employees are likely to seek creative approaches in an effort to circumvent the workers' compensation bar on such claims."

Batsch said the full scope of potential liability is unknown, "particularly considering that many business lobbyists are pushing Congress for legislation to shield employers from liability related to reopening the economy." Some states have already passed such legislation for certain employers.

Furloughs or Layoffs?

When an event triggers the closure of a worksite, an employer will have to decide how to handle employees who can't telecommute. This might include weighing furloughs against layoffs, O'Hara said.

"The employer likely will be trying to predict the duration of the drop-off in business, but this will vary greatly by industry and location," he noted. "Many companies have already had to make these hard choices, and many will have to going forward."

Consider the replacement cost for getting back to normal again if a more permanent choice is made. "Furloughs offer more flexibility than a reduction in force from that perspective," he said.

Employers can assist employees with filing of unemployment claims, Glickstein said. Employers also should consider whether their employees work in states with work-share agreements, which may affect unemployment eligibility, she noted.

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