South Florida businesses set to reopen May 18 need to develop and implement new policies in place to shield them from potential liability and costly COVID -19 lawsuits.

The advice comes as Miami-Dade Mayor Carlos Gimenez pinpointed May 18 as the target reopening date under Phase 1 of the state’s guidelines for reopening, with Broward County also set to follow that date. Palm Beach County has already implemented Phase 1, having reopened Monday.

But attorneys note the reopening could be problematic for South Florida employers as Miami-Dade, Broward and Palm Beach counties lead the state with the greatest number of deaths and confirmed cases of the coronavirus.

As of Tuesday morning, the Florida Department of Health tallied 14,385 cases and 505 deaths in Miami-Dade County from the coronavirus. Broward and Palm Beach Counties collectively reported around 10,000 total cases and just over 500 deaths.

1. Stagger employee return dates

With the reopening of a number of businesses next week is inevitable, Alison Smith, a partner at Kelley Kronenberg in Fort Lauderdale, says logistical preparations have to be developed so that local businesses can minimize their exposure to liability.

For instance, one of Smith’s clients is spacing out the start date of employees in four phases of 25% each after auditing the positions and considering the business’ needs. Another client is spacing out employee desks to be six feet apart, and those who need to move are placed in a large conference room to work with social distancing in place.

“The worry is if you don’t have these policies, you could be subjected to an OSHA complaint,” Smith said, referring to the Occupational Safety and Health Administration. “The employee could go to OSHA and say, ‘My employer forced me to return to work. I don’t feel safe because they have all these people congregating together, people are breathing on me and sneezing like crazy!’”

2. Focus on social-distancing policies

If OSHA inspects the building, the government agency will examine whether the company is failing to provide a safe environment, and will focus its attention on policies the company has in place to mitigate the risks of not social distancing.

“As the employer, that policy is your insurance,” Smith said. “It is to say, ‘This is not my child. I cannot police this person any more than I have already done. The liability does not rest with me. It rests with this singular individual.’”

Smith says a company that has its reopening policy spelled out in a document shows that it takes the social distancing measures seriously from a liability standpoint. As long as the company distributes the written policy to staff, it has done its part in large measure. The rest is a trust factor that the employees will follow the dictates of the reopening policy, subject to reinforcement by management.

3. Revise and update

April Boyer, a partner at K&L Gates in Miami, says revising a reopening policy could be expensive for a company, especially if the revision seeks to enforce new procedures, such as the initial verification of an employee’s health upon return to work and the frequency with which the company will follow up on the employee’s health after returning to work. She advises her clients to find the balance that works with their bottom line.

“People are going to get sick,” Boyer said. “We can’t prevent people from catching COVID-19. But we can certainly create a physical workspace that does what’s possible to create a healthy environment for employees to work in.”


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