Workplace Guidelines for COVID-19 Reopening

The COVID-19 pandemic presents a wide variety of challenges for Illinois employers, businesses, non-profits, and public-facing service providers of all types. At the same time, rapid changes in the current situation (including an increase in knowledge as we learn more about the disease) will necessitate frequent changes in any re-opening plan. In this fluid situation, every business must be prepared to update and change its plans frequently.

As the situation evolves, employers and other public-facing organizations should be concerned primarily about protecting the health and safety of their employees and members of the public with whom they interact. A related concern is protecting themselves from liability for claims that they have negligently exposed employees or members of the public to the COVID-19 virus by failing to take proper precautions. As organizations seek to reopen responsibly, they should consider at least the following areas.

I.  Adherence to applicable government orders

Adhering to applicable government orders is the most crucial aspect of avoiding potential liability. Lawsuits will likely proliferate against those who deliberately fail to comply with applicable orders, and who cause others to become sick as a result.

At present, the most relevant government orders are Governor Pritzker’s “Stay-at-Home” emergency executive orders. The order effective from May 1-28, 2020 is available here and the new order effective from May 29, 2020 is available here. State law allows the Governor to issue such orders for a period of no more than 30 days at one time.¹

Municipalities in Illinois may be allowed in some instances to adopt orders that are more restrictive than those the Governor has issued, but most have not done so. Municipalities and other local governments are not legally able to adopt less restrictive guidelines (although some have attempted to do so, or have announced that they will not enforce the Governor’s orders). For purposes of minimizing the risk of liability, complying with the presently-effective executive order will be crucial.

Governor Pritzker has also issued his “Restore Illinois” plan as a blueprint for relaxing his executive orders in the future. Significantly, the “Restore Illinois” blueprint does not have the force of law by itself. Each phase of the plan must be effectuated by a new executive order (each of which can last for no more than 30 days). This means that, although the Governor’s plan allows the public to predict what future executive orders may provide in general, the details will not be known until the relevant executive order is actually entered. The Governor has indicated a willingness to revise the original provisions of the Restore Illinois plan (such as by allowing restaurants to offer outdoor dining in Phase 3 of the plan, contrary to his original statements), so a review of the actual orders when they go into effect is crucial to understand the details of the regulations then in place.

Again, the crucial point is that the governor’s then-effective executive orders provide the regulations with which organizations must comply, and that compliance with these orders (and any orders from local governments that are more restrictive) will be crucial for avoiding potential liability.

II.  Following guidance from public health authorities

A second key consideration is guidance from federal, state, and local government bodies, including public health authorities. This guidance does not have the force of law, but can provide detailed guidance about “best practices” for organizations to follow as they reopen.

Many resources in this category are available, including guidance from:

• The CDC: Activities and Initiatives Supporting the COVID-19 Response
• The CDC: Interim Guidance for Businesses and Employers
• The State of Illinois Department of Public Health: Business and Organization Guidance
• The Champaign County Public Health District: Re-opening Your Business in the Age of COVID-19 Toolkit (This guidance provides detailed advice for different types of employers as to the best way to protect their employees and the public.)

Compliance with this guidance will be a significant defense to any claims that may be brought against an organization for exposure to the COVID-19 virus. Based on these guidelines, a non-exhaustive list of areas that every organization should consider includes the following:

• Social distancing: Require employees and visitors to practice social distancing by avoiding large gatherings and maintaining distance (at least 6 feet) from others when possible. Implement practices to minimize face-to-face contact among and between employees and visitors.
• Protective equipment: Determine which employees are most at risk (due to interactions with the public or otherwise), and provide them appropriate protective equipment, including N95 masks, face shields, body suits, or surgical masks. Encourage all others to wear at least cloth masks or surgical masks while at your facilities, and especially while closer than 6 feet to other individuals.
• Monitoring employees for exposure or illness: Employees should be screened regularly for potential exposure or symptoms. Click here for a sample questionnaire form from the U.S. Chamber of Commerce for employee screening. Regular in-person health checks (e.g., temperature screening) should also be considered. Any employees exhibiting symptoms should be encouraged to stay home. All records of such health checks should be kept confidential according to EEOC guidance.
• Cleaning/disinfecting: An organization should be thoroughly disinfected before resuming normal operations. Regular cleaning (with special attention to high-touch surfaces) should continue thereafter.
• Plan for an employee or visitor becoming ill: Each organization should develop a plan for reacting to the news that an employee or visitor is ill or has become ill while on the premises.

III.  Liability Waiver

Another potential tool for organizations to use to limit or avoid liability is requiring visitors to sign a waiver explicitly acknowledging and accepting the risk of infection from COVID-19 while on the premises of the organization. As an initial matter, this measure cannot be used for employees, who under state law cannot waive their right to workers’ compensation and similar rights.

Even as to customers or invited guests, it is important to understand that courts in Illinois do not always enforce liability waivers, particularly if they are against public policy, include unclear language, or are between parties with a significant disparity in bargaining power. Waivers also are not effective to protect against claims of intentional, reckless, or grossly negligent conduct, nor are they enforceable against children.

If adopting a requirement that visitors or customers sign a waiver before entering the premises or receiving services, be sure that (1) the waiver explicitly spells out the subject matter of the waiver (in this case, liability for exposure to COVID-19); (2) the waiver uses only clear, explicit, and unequivocal language, and is not overly technical or complicated; (3) there is no unequal bargaining relationship between the parties; and (4) the waiver is not against public policy.

IV.  Insurance

Another line of defense against potential claims is insurance. Now is the time to evaluate your current coverage to ensure that it provides the protection you need. In particular, you should be concerned about the following categories of coverage:

• For Invitees – Commercial General Liability (“CGL”) Coverage: A CGL policy typically covers bodily injury or property damage that you might cause to an invited guest or customer. These policies will likely cover claims that an organization harmed such a person by failing to protect or warn them against the risk of exposure to COVID-19, provided that your policy does not include a specific exclusion that would preclude coverage.
• For Employees – Workers’ Compensation Coverage: Employees may be eligible for workers’ compensation payments for COVID-19 exposure in the workplace under the Illinois Workers’ Occupational Diseases Act. The Act applies if the employees’ risk of exposure is “peculiar to or increased by the employment and not common to the general public.” 820 ILCS 310/1(d). Employers are required to carry coverage for any such claims that may be brought by employees.

We recommend that all organizations review their insurance coverage to verify that they have the coverage that they need. Even if you have coverage against potential COVID-19 claims, you should also ensure that you are satisfied with the deductibles and limits provided for in your policy.

V.  Conclusion

If you need our assistance with any of the above, please let one of our COVID-19 team members know at your earliest convenience:

John Thies
Daniel Thies
Mike Brusatte

As always, the attorneys at Webber & Thies are available to assist with issues you are currently facing due to the ongoing pandemic. Contact us to begin the conversation.

Stay Safe!

 

¹ Several lawsuits have been filed challenging the Governor’s authority to issue successive 30-day orders, arguing that the law limits him to only a single thirty-day period. This issue has not yet been resolved by the courts.