As Pandemic-Related Shut-Downs Continue, the United States, Like Countries Across Global Regions, Begins To Consider How To Restart Business

It was late December when the first cases of COVID-19 were reported in China. Since then, the disease has spread across the world in a global pandemic. In response, countries have instituted various measures in an effort to slow its spread. One common measure has been to order non-essential businesses to suspend operations. Another common measure has been to limit domestic and foreign travel. But as the economic toll increases and the pandemic begins to abate in certain regions, governments are starting to think about how they will restart their economies.

Yesterday, April 15, 2020, for example, Chancellor Angela Merkel announced a plan to begin reopening the shuttered portions of Germany’s economy starting next week. The day before, US President Donald Trump signaled his desire to reopen American businesses by May 1 if not earlier.

Although the process of reopening businesses is still in its early stages even where the pandemic’s apex has apparently passed, this much is clear already: the process will be gradual, vary from jurisdiction to jurisdiction, and confront business with myriad issues.

As the pandemic spread across the globe, many local and national governments ordered non-essential businesses to cease in-person operations. When originally issued, many of those orders were to remain in effect for several weeks or a month. But as the pandemic has continued, multiple jurisdictions have extended the orders. Just yesterday, for example, the District of Columbia and Virginia each extended their business-closure orders.

Driven in part by different experiences with COVID-19 and in part by different policy proclivities, world governments are moving at different speeds toward the resumption of business as normal. In Germany, factories were never ordered to shut; in France and Italy, by contrast, factories were forced to close and have been ordered to remain closed. Even within a single country, different parts of the economy are likely to reopen at different times. Under the plan announced by Germany’s Chancellor Merkel, for example, small stores will, subject to certain conditions, be allowed to reopen as of April 20 while restaurants, bars, sporting venues, and concert halls will remained closed through August. As New York Governor Andrew Cuomo stated when he today extended New York’s stay-at-home order from April 30 to May 15, “[t]here’s no light switch” to throw that would enable “all businesses” to resume full operations “tomorrow.” Consistent with that understanding, Governor Cuomo outlined a plan that calls for a staged resumption of normal business operations “designed to open businesses in phases of priority,” giving consideration to both the importance of the business and the risk of infection posed by its reopening.

In places, such as the United States, where businesses are subject to regulation at multiple levels of government, companies could be caught between conflicting directives. The spectre of such conflicts was raised earlier this week when President Trump initially asserted that he has “total” authority to determine when American businesses reopen, while state governors (backed by constitutional scholars) maintained that the decision rests with them and have formed multi-state pacts to coordinate the resumption of business across economically integrated regions.

Although the president has since backed away from his assertion of “total” authority, the same sort of conflict could be replicated at the state and local level if, for example, a municipality issues a business-closure order that state officials attempt to countermand. To cite one example of where such a conflict could arise, California has issued a stay-at-home order that extends through May 3 but Los Angeles has issued a stay-at-home order that remains in effect until May 15.

When contemplating the resumption of non-essential business, authorities must take into account the risk of renewed infections. After having weathered the initial outbreak of COVID-19, certain Asian countries, including China and Singapore, have reported new cases apparently attributable to international travelers and have imposed new travel restrictions as a result. Of course, domestic transmission of SARS-CoV-2, the virus that causes COVID-19, is also a significant concern as lock-down orders are relaxed.

Until an effective vaccination is developed and widely available, something that experts suggest is still at least a year away, effective testing of individuals to determine whether they are infected with SARS-CoV-2 will be essential to a safe resumption of business, particularly given that many infected people are contagious but asymptomatic. Some countries, such as South Korea and Germany, appear to have controlled the COVID-19 outbreak through aggressive testing followed by thorough contact tracing. Absent effective testing and contact tracing, any country that resumes in-person business activity risks a resurgence of COVID-19.

As companies contemplate reopening their premises when permitted, they will have to develop protocols to ensure the safety of their employees and customers. Adopting appropriate and effective measures will not only facilitate a successful resumption of activity despite a continued threat from SARS-CoV-2 but will also help companies avoid potential civil and regulatory liability. When designing and implementing such measures—which could involve medical-clearance, social-distancing, and sanitation protocols—companies will have to consider not only virology but also various legal issues, such as privacy and anti-discrimination laws.

Indeed, it is already apparent that the COVID-19 pandemic will result in businesses facing legal claims. Today it was reported, based on data obtained through a Freedom of Information Act request, that thousands of employees have filed complaints with the US Occupational Safety and Health Administration alleging that their “essential business” employers—i.e., companies in the healthcare, supply chain, infrastructure, and other critical sectors that have been allowed to continue operations during the pandemic—required them to work without providing adequate protection against SARS-CoV-2. The risk of similar claims will undoubtedly accompany the reopening of the world economy.

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