Interim Advice to Washington Business Owners in the face of the COVID-19 Pandemic

March 13, 2020

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 action to combat the spread of the disease. These actions have direct impacted the community as a whole, but businesses have been particularly affected by new closures, supply-chain deficiencies, and in-office protocols.

The general advice below is directed to small- and medium-sized business owners, which make up a large part of Possinger Law Group’s clientele. Most importantly, the following is only interim advice, and it is general in nature. In many ways, all of us find ourselves in unfamiliar territory, and situation is likely to change day-to-day, if not hour by hour. If you have specific questions about navigating the rapidly-evolving pandemic, we invite you to contact Possinger Law Group directly.

So, how should a business owner respond to what feels like a complete deluge of news and information? And even more importantly, 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 COVID-19 pandemic.

Legal Compliance

The first issue to address is legal compliance and risk mitigation, in regards to employment law. Employers should assume that all existing laws and regulations remain in place, and pay careful attention to additional requirements that are being 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 people or more (along with additional Public Health Orders) that added additional requirements for social, spiritual, and recreational gatherings involving fewer than 250 people. The Proclamation and Public Health Orders were effective immediately and continue to be in place until March 31, 2020 (unless extended).

In addition, King, Pierce, and Snohomish Counties have ordered the prohibition of gatherings involving fewer than 250 people, unless measures are taken by event organizers to minimize risk. Practically, this is likely to apply to most businesses.

Under the King County’s Public Health Order, 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 who are at increased risk of COVID-19 are encouraged not to attend (including employees);
Social distancing recommendations are met (i.e., limit contact of people within 6 feet from each other for 10 minutes or longer);
Employees are screened for symptoms of COVID-19 each day, and asked to leave if symptomatic;
Proper hand hygiene and sanitation are 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, and other similar 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.

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 currently classified as a gross misdemeanor.

Employment Law Implications

As noted above, employers must screen employees for symptoms of COVID-19 each day, excluding them from in-person contact if they are symptomatic. Practically, this means that employees must be sent home if they show signs or symptoms of illness. This screening is required to be performed in a consistent manner, to avoid violations under the ADA and other anti-discrimination laws and regulations.

Regardless of symptoms, employees with confirmed or suspected exposure to COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure. In this situation, FMLA and other legal contracts could apply.

If an employee is confirmed to have contracted COVID-19, employers are required to inform fellow employees of their possible exposure to COVID-19. In doing this, it is imperative that the employer maintain confidentiality of the COVID-positive individual, as it is required by the Americans with Disabilities Act (ADA). Employees who suspect that they may have been exposed to COVID-19 should refer to the CDC guidance on how to conduct a risk assessment.

Additional Resources and Guidance:

Protecting Employees, Customers, and Community

There are a number of practical steps that business owners can take not only to comply with current regulations and guidelines, but also to minimize and mitigate risk to employees, customers, and the community at large.

The CDC recommends that employers emphasize respiratory etiquette and hand hygiene by employing the following procedures:

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 often with soap and water for at least 20 seconds.
Advise employees to avoid touching their eyes, nose, and mouth with unwashed hands.
Provide adequate access to soap and water, as well as alcohol-based hand rubs in the workplace. Ensure that these supplies are well-maintained and continuously-stocked. Place hand rubs in multiple locations or in conference rooms to further encourage hand hygiene.
Visit the coughing and sneezing etiquette and clean hands webpage for more information and suggestions.

Business owners should also perform routine environmental cleaning, which involves the following procedures:

Routinely clean all frequently-touched surfaces in the workplace (such as workstations, countertops, and doorknobs). Use standard cleaning agents for these surfaces and follow the directions on the label, to ensure that the environment is cleaned effectively.
No additional disinfection beyond routine cleaning is recommended at this time.
Provide disposable wipes so that commonly-used surfaces can be wiped down by employees before each use.

Additional guidance can be found here:

CDC Guidance for Business Response to COVID-19

Business Continuity and Recovery

Employers should be ready to implement strategies to protect their workforce from COVID-19, while also ensuring continuity of business operations. In the case of 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 common surfaces should be performed often and routinely.

Business owners need to consider how best to decrease the spread of acute respiratory illness and lower the impact of COVID-19 and other diseases within the workplace. 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 planning a response are:

Identifying the disease’s severity (i.e., number of people who are sick, hospitalization and death rates) in the community where the business is located;
Understanding the impact of disease on employees, especially those who are vulnerable and may be at higher risk for COVID-19 adverse health complications;
Making preparations for possible increased numbers of employee absences due to illness in employees and their family members, as well as dismissals of early childhood programs and K-12 schools due to community spread;
Planning to monitor absenteeism in the workplace, and implementing plans to continue essential business functions while experiencing higher rates of absenteeism;
Cross-training personnel to perform essential functions so that the workplace is able continue operations even if key staff members are absent;
Assessing essential functions and the reliance that others and the community have on your services or products, being prepared to change business practices if needed in order to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed);
In the case of employers with multiple business locations, providing 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;
Coordinating with state and local health officials, so that timely and accurate information can guide appropriate responses in each location where their operations reside.

Other Resources for Businesses and Employees Affected by COVID-19.

In response to the significant impact of the COVID-19 Pandemic on businesses and the economy, 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 (such as support with unemployment benefits, shared work, partial unemployment, and standby).

A Final Note (For Now)

Information about COVID-19 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 these resources, the relevant county level Public Health Department websites may have additional information on local guidelines and requirements.

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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.