INSIGHT: Protecting Lives and Livelihoods—Concerns as States Reopen

Nascent initiatives to reopen the nation’s economy have gained momentum almost as quickly as the efforts to shut it down in response to the Covid-19 pandemic that took hold barely two months ago.

Though the move to reopen has spread quickly, it is not without controversy. Experts have urged states to proceed with caution, citing such concerns as:

1. the increase in Covid-19 cases in many reopening states;
2. recent polling confirming the public’s support for continuing the shutdown and suggesting a reluctance to return to business “as usual” just yet; and
3. the lack of a comprehensive nationwide program for testing, contact tracing, and isolating individuals who test positive for Covid-19 or have been in contact with an exposed individual.

Moreover, many employers, though anxious to reopen, have additional concerns about the potential for liability to workers, clients, customers, and others who may contract Covid-19 due to an interaction with their business, and the real possibility that the reopening will result in a spike in new cases significant enough to necessitate another, perhaps costlier, shutdown.

In assessing a state’s reopening plan, employers need to be mindful of both the practical hurdles and legal pitfalls inherent in such initiatives, and ensure that their return-to-work policies and practices are as safety-focused and otherwise legally sound as possible. A useful starting point for such an assessment may be with guidance from the federal government.