In just a short period, Washington State has become an epicenter of the COVID-19 Pandemic in the United States. Responding rapidly to this emerging health crisis, the Federal government, the State of Washington, and various local authorities have taken actions to combat the spread of the disease that have a direct impact on the community; but also a particular set of significant impacts on businesses of all sizes.
The general advice below is directed to small and medium sized business owners, as there is already significant information available for the general public. Most importantly, the following is interim advice and general in nature. In many ways, all of us find ourselves in unfamiliar territory, and things are more likely than not going to change day to day if not hour by hour.
So how should a business owner respond to what seems like a deluge of news and information; and what specifically should they be doing? The following should be seen as a general framework for planning, preparing, and responding to the issues created by the COVDID-19 Pandemic:
The first issue to address is legal compliance and risk mitigation for legal issues surrounding employment law. Employers should assume that all existing laws and regulations remain in place, as additional requirement have been added to respond to the emergency.
Emergency Regulations and Public Health Orders
Since February 29, 2020 all counties in the State of Washington have been under a State of Emergency, set out in Proclamation 05-20. On March 10, 2020, Proclamation 06-20 was issued (Regulating Nursing Homes and Assisted Living Facilities), and on March 11, 2020, Proclamation 07-20 was issued for King, Pierce, and Snohomish Counties for gatherings of 250 or more persons (along with additional Public Health Orders) that added additional requirements for social, spiritual, and recreational gatherings involving less than 250 persons. The Proclamation and Public Health Orders were effective immediately and are in place until March 31, 2020 (unless extended).
“Gatherings of 250 or more for social, spiritual and recreational activities, including but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.”
In addition, King County (and the other 2 Counties) have ordered the prohibition of gatherings of fewer than 250 people unless measures are taken by event organizers to minimize risk. This practically means all businesses.
Under the Public Health Order (for King County), an “event” is defined as a public gathering for business, social, or recreational activities including, but not limited to, community, civic, public, leisure, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities, unless event organizers take steps to minimize risk. Specifically, organizers of events of fewer than 250 people must ensure that:
- Older adults and individuals with underlying medical conditions that are at increased risk of serious COVID-19 are encouraged not to attend (including employees);
- Social distancing recommendations must be met (i.e., limit contact of people within 6 feet from each other for 10 minutes or longer);
- Employees must be screened for coronavirus symptoms each day and excluded if symptomatic;
- Proper hand hygiene and sanitation must be readily available to all attendees and employees; and
- Environmental cleaning guidelines from the U.S. Centers for Disease Control and Prevention (CDC) are followed (e.g., clean and disinfect high touch surfaces daily or more frequently).
At this time, retail businesses and service operators such as grocery stores, drug stores, movie theaters, restaurants, other retail establishments may continue to provide services as long as they take steps to minimize the spread of disease. Additional guidance will be issued and posted on www.kingcounty.gov/COVID.
As noted above, the regulations as stated above effect essentially all businesses in King, Pierce, and Snohomish Counties regardless of size.
Although the Counties have emphasized that enforcement of these regulations will be focused on education and guidance, violation of these emergency regulations and orders are a gross misdemeanor.
Employment Law Implications
As noted above, employers must screen employees for coronavirus symptoms each day and excluded if symptomatic; which is consistent with sending employees home if they show signs and symptoms of illness generally. At the same time screening needs to be done in a uniform and consistent manner to avoid violations under both the ADA and other anti-discrimination laws and regulations.
In addition, Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure. Family medical leave or other legal contracts may apply.
If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
The critical issue for business owners is to rely as much on CDC, and DOH guidelines and regulations for the basis of these decisions, along with even handed and reasonable application of those standards.
Additional guidance can be found here:
- CDC Guidance for Businesses
- CDC Guidance for Workplace, Shool, and Home.
- OSHA Guidance for COVID-19
- Washington State Department of Health COVID-19 Workplace Guidance
Measures to Protect Employees, Customers, and Community.
There are a number of practical steps that business owners can use to both comply with the current regulations and guidelines as well as minimize and mitigate risks to employees, customers, and the community at large.
Emphasize respiratory etiquette and hand hygiene by all employees:
- Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
- Provide tissues and no-touch disposal receptacles for use by employees.
- Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
- Advise employees to avoid touching their eyes, nose, and mouth with unwashed hands.
- Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
- Visit the coughing and sneezing etiquette and clean hands webpage for more information. (LINK)
Perform routine environmental cleaning: (for more information, refer to CDC website for businesses:
- Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
- No additional disinfection beyond routine cleaning is recommended at this time.
- Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use
Additional guidance can be found here:
Business Continuity and Recovery
All employers should be ready to implement strategies to protect their workforce from COVID-19 while ensuring continuity of operations. During a COVID-19 outbreak, all sick employees should stay home and away from the workplace, respiratory etiquette and hand hygiene should be encouraged, and routine cleaning of commonly touched surfaces should be performed regularly.
All employers need to consider how best to decrease the spread of acute respiratory illness and lower the impact of COVID-19 in their workplace in the event of an outbreak in the US. They should identify and communicate their objectives, which may include one or more of the following: (a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains. Some of the key considerations when making decisions on appropriate responses are:
- Disease severity (i.e., number of people who are sick, hospitalization and death rates) in the community where the business is located;
- Impact of disease on employees that are vulnerable and may be at higher risk for COVID-19 adverse health complications. Inform employees that some people may be at higher risk for severe illness, such as older adults and those with chronic medical conditions.
- Prepare for possible increased numbers of employee absences due to illness in employees and their family members, dismissals of early childhood programs and K-12 schools due to high levels of absenteeism or illness:
- Employers should plan to monitor and respond to absenteeism at the workplace. Implement plans to continue your essential business functions in case you experience higher than usual absenteeism.
- Cross-train personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent.
- Assess your essential functions and the reliance that others and the community have on your services or products. Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed).
- Employers with more than one business location are encouraged to provide local managers with the authority to take appropriate actions outlined in their business infectious disease outbreak response plan based on the condition in each locality.
- Coordination with state and local health officials strongly encouraged for all businesses so that timely and accurate information can guide appropriate responses in each location where their operations reside. Since the intensity of an outbreak may differ according to geographic location, local health officials will be issuing guidance specific to their communities.
Other Resources for Businesses and Employees Effected by COVID-19.
In response to the business and economic effects of the COVID-19 Pandemic, the Federal and Washington State Governments have been introducing programs to assist Businesses and Employees. This includes Financial Assistance, Export Assistance, and Employer and Worker Assistance (Including Support with Unemployment Benefits, Shared Work, Partial Unemployment, and Standby).
A Final Note (For Now)
Information about the Coronavirus is constantly developing, so employers also should continue to refer to the CDC, WHO, and OSHA websites for the latest on appropriate precautions, including changes to travel notices. In addition to the relevant county level Public Health Department websites.
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DISCLAIMER: This blog post, as well as any data and information provided are for informational purposes only. It is not legal advice nor should it be relied on as legal advice. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction, or situation. The law is a rapidly changing subject, no representation is made that everything posted on this site will be accurate, up to date, or a complete analysis of legal issues. Please consult with an attorney with the appropriate level of experience if you have any questions. Review or use of the document and any discussions does not create an attorney-client relationship with the author or Possinger Law Group, PLLC. No attorney-client or confidential relationship is or should be believed to be formed by the use of this site. The opinions expressed here represent those of Jeffrey Possinger and not those of Possinger Law Group, PLLC or its clients.