States and individual communities are moving ahead with phased reopenings of their economies. As a result, business owners need specific guidance on what steps they should take to reopen safely for employees, customers, and others with whom their businesses interact. My prior article addressed the importance of following regulatory requirements and best practices established by public health organizations to reopen in a way that reduces health risks, but for employers, the need to manage health risk goes beyond to needing to manage health risks that can lead to legal risks with COVID-19 still running rampant.

Employers should consult with available resources to create a detailed plan to actively manage health risks associated with the virus, share the plan with all appropriate stakeholders, and document the plan as it is implemented. Company leadership should regularly review the plan and revise it as necessary when new resources become available, keeping all documentation updated on a regular basis.

Just recently, on May 6, 2020, additional tools were issued by the Center for Health Security at Johns Hopkins Bloomberg School of Public Health, “Operational Toolkit for Businesses Considering Reopening or Expanding Operations in COVID-19,” developed to help businesses assess risk and make necessary modifications to their business operations as they reopen. The toolkit provides a decision tree based on a risk assessment calculator and a process for identifying appropriate modifications. Overall, the basic considerations – frequency and intensity of contact – remain key elements in assessing risk and determining what modifications should be made, but the toolkit takes it further by providing concrete suggestions – actual steps to take – that address risk and business operations. The Occupational Safety and Health Administration and the Centers for Disease Control have also issued detailed guidance on how to plan for reopening.

Another aspect of reopening that employers should consider in advance is what to do if an employee, client, or other associated party gets infected with COVID-19. Strategies to handle all possible scenarios should be created in advance, which will help employers manage potentially stressful situations. Answers to questions like 1) what additional cleaning measures should be taken or 2) what may necessitate a temporary closure, are better decided when stress levels are low. Best practices also include developing communications plans to message various possible situations that could occur as a result of the virus and actions that will be taken to mitigate risk for others. Developing a plan in advance allows employers to take their time to think about all possible sensitivities and considerations, such as how to protect individual privacy and prevent disclosure of information that could violate applicable laws such as the Health Insurance Portability and Accountability Act – HIPAA – or state privacy laws, while still informing others about risk and the protective actions being taken. There is definitely truth to the expression “clearer heads prevail.”

Maintaining a work environment that is designed with health safety in mind should be the primary focus of reopening efforts. Nevertheless, businesses will not be able to entirely eliminate the risk of infection. Even as health and safety guidance for the workforce changes, the advice on how employers can best protect against legal exposure remains the same: document what you’re considering as you reopen and how your plan is being implemented, and then periodically review your plan to incorporate any relevant changes in guidance… and then document that.