The COVID-19 pandemic has upended the world, resulting in lockdowns in nearly every country. Ninety-five percent of Americans are currently under some type of shelter-at-home order, businesses have been stopped in their tracks, and more than twenty-two million Americans have filed for unemployment benefits.
When infection rates and hospitalizations decline, the new challenge will be “when” and “how” to “re-open” the country and restart the economy while maintaining the health and safety of our people. The re-opening likely will proceed on a state-by-state (or region-by-region) basis, in which governors, mayors, and public health officials will decide for each of their populations. State governors have already formed pacts to coordinate this process.3 The federal government recently released guidelines, titled “Opening Up America Again,” which envision opening the economy in three phases, after “gating criteria” are met, including: (1) a downward trajectory of influenza-like illnesses and documented cases over a 14-day period; (2) the ability of hospitals to safely treat non-crisis patients; and (3) a robust testing program for healthcare workers.4 Various other government agencies have also issued guidelines concerning COVID-19, including the Centers for Disease Control and Prevention (“CDC”) and the Department of Labor’s Occupational Safety and Health Administration (“OSHA”).
We recommend that businesses develop a detailed COVID-19 action plan that cohesively addresses the regulations and guidelines governments and government agencies have recently issued and will continue to issue. We are available to assist with these plans.
In the rush to encourage the economy to re-start, businesses will have to navigate conflicting government guidelines. For instance, it appears likely that re-opening guidelines and standards will differ from state to state and within a given state, and that the federal guidelines may also differ. Thus, if your business operates in more than one state, county, or city, you will need to consider how to comply with potentially conflicting mandates as to how and when to re-open your business, or whether you can do so in one state if you are unable to do so in another.
The purpose of this Alert is to identify some of the issues that businesses will face, so that consideration can begin before governments green-light the re-opening of the economy. It is not intended to answer every question; too many details remain to be worked out and subject to legislation, guidelines, and executive orders. Below we present some of the key issues our clients may encounter:
- What Are My Obligations Concerning My Employees’ and Customers’ Health and Safety?
- Will Re-Opening Affect Contractual Defenses Such As Force Majeure, Impossibility, or Frustration of Purpose?
- Will Re-Opening Affect Insurance Claims For Business Interruption?
- What Can I Do to Avoid Violations of Antitrust Laws?
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If you have any questions about the issues addressed in this memorandum, or if you would like a copy of any of the materials mentioned in it, please do not hesitate to reach out to: