Ten costly mistakes when reopening and operating a business during COVID-19

These challenging times are a stress test for all companies. Survival mode is not sufficient. What’s needed is an ability to lead employees through the crisis, absorb and respond to uncertainty, agility to modify the operating model quickly, and creativity to improve the experience of customers. The Internet offers an overabundance of information – google “preparing your business to reopen after COVID-19” and there are 1,780,000,000 hits. There’s no argument – it’s a daunting task. Here are ten costly mistakes to avoid:

1. Fail to have a written, site-specific COVID-19 Exposure Control and Response Plan

   Many states and localities require businesses to develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan and both the CDC and OSHA recommend adopting one. Dustin Boss, a Certified Risk Architect and Master WorkComp Advisor with Ottawa Kent Insurance, notes that any business that operates without an Exposure Control Plan will be exposed to a number of legal or business risks. These include OSHA citations, being shut down by state or local health departments, becoming a target for a wrongful death action brought by families of employees, temporary workers, customers, vendors, and/or guests. Lawyers have already started filing wrongful death suits, including high profile cases against Tyson and Walmart.

   Moreover, there is significant reputation exposure. Recently, a worker on the production line of American Fork (Utah-based Built Brands LLC), who contracted the virus along with her disabled daughter and roommate filed suit against her employer, charging she was threatened with termination when she complained about the company’s safety procedures. The case has received national attention.

2. Fail to follow appropriate guidance

   While most business owners are responsible for making their plans to keep employees, customers, and vendors safe when reopening and operating their establishments, there are critical guidelines to incorporate. The CDC has issued detailed guidance on reopening businesses, health care facilities and providers, schools, transit, and other industries. This guidance also provides information regarding testing and data to assist with exposure and risk concerns for those industries. Joint guidance by the CDC and the EPA to clean and disinfect surfaces is available here.

   OSHA has provided general guidance for businesses as well as industry-specific guidance, which are offered in both English and Spanish. Its most recent guidance focuses on strategies to implement social distancing in the workplace. Spanish version.

   In addition, most states have provided specific guidelines that must be incorporated into the exposure plan. The best resource is the state’s dedicated webpages for COVID-19. Recognizing that each state has its own guidance, the U.S. Chamber of Commerce established the Essential Critical Infrastructure Workplace Tracker. It provides a state-by-state glance of stay-at-home orders with links to each order, start and current end dates, and other details about each state’s guidance.

   Beyond the federal and state resources, stick with sources you know you can trust such as your trusted advisors and industry and trade organizations. Professional organizations such as the National Safety Council (NSC) and the American Industrial Hygiene Association (AIHA) offer industry-specific guidance. The North America’s Building Trades Unions and CPWR, The Center for Construction Research and Training have developed national guidance on infectious disease exposure control practices for construction sites.

   Keep an open mind, constantly evaluate, and adjust your plan as operations evolve.

3. Fail to incorporate the full range of operations in your plan, including remote workers

   Even when the plant or office has been reconfigured to conform to physical-distancing protocols, there’s a need to figure out adaptations for bathrooms, breakrooms, entrances and exits, hallways, elevators, and any other common areas. Determine how visitors, whether customers, vendors, or delivery people, will be managed. If your workforce relies heavily on public transport, you may want to consider other options such as ride-sharing subsidies or more flexible hours to avoid rush hour.

   Stay-at-home orders were issued at such speed that employers had no time for home assessments and ergonomic training. Training and investment in proper desks or chairs for those workers who will continue to work remotely for an extended period should be part of the plan. To the extent that an employer has not created or revisited their telework policy, now is the time to do so.

4. Fail to properly communicate the plan to employees and customers

   In the early stages of the outbreak, Dr. Fauci said, “… if it looks like you’re overreacting, you’re probably doing the right thing.” If it feels like you are overcommunicating, you are probably doing the right thing, too. The fear of the virus, coupled with the fear of losing a job, is unprecedented. Tell your employees and customers early and often what you are doing to keep them safe. If you have a phased return to work and some employees are furloughed, be sure to communicate with all of them. Keep an open dialogue with employees and be transparent. Do they feel safe?

   Be specific about what you are expecting of the workers. If face coverings are required, is the company going to provide them, when they have to be worn, how they can be cleaned, can they wear a bandana, and so on. What are the consequences if they don’t comply? Identify their responsibilities to help with prevention efforts while at work by following company instituted housekeeping, social distancing, and other best practices at the workplace.

   Of course, communication and training must adhere to social distancing protocols or be safely automated. Studying “essential businesses” that stayed open during the pandemic, McKinsey researchers found that online training and education modules to familiarize employees with the new safety and hygiene protocols before they return to work played a significant role in instilling new habits.

   Ongoing reminders, whether signage, texts, or announcements to sanitize workstations, wash hands, and maintain social distance help to reinforce positive behavior as well as build employee confidence in their safety. Also, don’t assume that employees know what to do in the event of exposure or diagnosis; constant reminders are important.

5. Fail to properly train managers and supervisors

   Managers and supervisors are the linchpins to successfully reopen and maintain business continuity. Educate and involve them in the development of new protocols before reopening. Be realistic about what the changed working conditions mean for production and discuss expectations. Not only do the managers have to adapt to changed working conditions, but they have to understand the fundamentals of assessing the risk, recognizing the hazard of COVID-19, how to handle a suspected case and even rumors of a suspected exposure. Moreover, they will be working with many employees whose mental and emotional health has been upended by the virus. They’ll need to understand at the most granular level employee sentiment about COVID-19 and their comfort level with the company’s response.

6. Assume your workers are ready to return to workA nationwide survey of 1000 workers in late April by Eagle Hill Consulting LLC found that 54% were worried about exposure to COVID-19 at their job and 58% said the availability of protective protections like masks, gloves, and hand sanitizer would make them feel safer. Fifty-five percent say mandating employees with symptoms stay home and 53% said making COVID-19 tests available would also lessen concerns, but only 43% support employers testing for symptoms. Seventeen percent worried the test results would affect their employment.

   The good news is that most employees (71%) say their employers will be prepared to safely bring employees back to the workplace. However, there will be some workers who may refuse to work or may upset others if forced to return. Others may want to continue to work remotely. Be prepared about how you will treat these workers in a fair and non-discriminatory way and document your response.

7. Fail to recognize the toll on physical and mental health

   For many people, this has been the most distressing time in their lives. They’re concerned about their family, economic hardship, and health. Those with physically demanding jobs may not be in shape. Some have had difficulty sleeping or turned to substance abuse and others have been severely stressed. The impact on mental health is real. Knowing that you understand what they are going through and offering resources to those in need can help to ease anxiety.

8. Not understanding the privacy and logistic issues of conducting tests, taking temperatures, and contact apps

   Guidance from the EEOC permits certain exceptions to the traditional rules under the ADA, but it doesn’t mean that privacy rights can be ignored. Further, the guidance does not address which tests are appropriate, who should conduct the tests, how tests should be administered, what should be done to protect workers’ privacy, the reliability or frequency of testing, how the tests will be paid for and whether employees should be paid for the time they wait in line to have their temperatures taken.

   It’s important to realize that under OSHA temperatures are medical records, which must be maintained for 30 years. Some legal experts recommend minimizing the amount of data you collect, such as recording only those that exceed the COVID-19 threshold of 100.4 degrees and are sent home. Under the ADA, the information that is recorded should be treated as a confidential medical document and not placed in an employee’s personnel file.

   Employers should also review the CDC guidance on testing and any relevant state guidance.

   Similarly, companies must also decide on whether they use contact apps to track and identify people who might have been exposed when someone tests positive. To date, the EEOC has not issued guidance, but employer-based contact tracing implicates a variety of laws, including workplace laws like the Americans with Disabilities Act (ADA), other federal and state employment, civil rights, privacy, and consumer protection laws.

   Before embarking on testing or tracking, it is best to seek legal counsel.

9. Discriminate against those considered susceptible to the coronavirus

   The CDC has identified the population that is at high-risk for severe illness, including people over 65 and those with pre-existing health conditions, and recommends that employers protect such employees by encouraging options to telework and offering duties that minimize interaction. The EEOC has also issued guidance that states that if an employer is concerned about an employee’s health being jeopardized upon returning to the workplace, the employer cannot exclude the employee “solely because the worker has a disability that places him at a ‘higher risk for severe illness'” if he gets COVID-19. Such an action is not allowed unless the employee’s disability poses a “direct threat” to his health, and cannot be eliminated or reduced by reasonable accommodation. However, it is appropriate to reach out to employees in high-risk groups and discuss accommodations that may be possible.

   In deciding who will return to work, legal experts suggest employers should follow the same procedures they would in reductions-in-force by statistically analyzing those they are asking to return and see if it is disparately impacting protected classes. If there’s a statistical anomaly, documentation is critical. A good beginning is to look at the skill sets you’ll need in the new economy and employees who are cross-trained.

   Also, employers must pay close attention to employment laws, including exempt and non-exempt classifications, overtime calculations if performing work in two positions at different rates, and benefits for existing and furloughed workers. For workers’ compensation, employers will want to carefully document all changes to their operation and job classifications, as well as employees on paid medical leave.

10. Lose focus on other health and safety risks

    It’s well-known that distracted workers are prone to make more mistakes and safety incidents increase. There’s little doubt that COVID-19 and concerns about job security are major distractions. Reinforce the importance of safe work practices and while social distancing may make pre-COVID-19 meetings impossible, alternative methods should be used.

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