Reopening the doors of your business can also mean opening the door to lawsuits from customers and employees.

Georgia was one of the last states to order nonessential businesses to close in response to the COVID-19 pandemic. On April 24, 2020, the state became one of the first to allow many nonessential businesses to reopen, including gyms and salons. Starting April 27, the state is allowing most other businesses to reopen to the public.

Many employers are clamoring to ramp up operations after being shuttered for weeks, but reopening the doors of your business can also mean opening the door to lawsuits from customers and employees. Here’s what employers need to know:

Most Businesses Can Reopen to the Public as Long as They Follow Certain Requirements

On April 2, 2020, Georgia Governor Brian Kemp issued an order requiring most nonessential business to close. However, on April 20, 2020—10 days before the closure order was set to expire—Governor Kemp issued an order permitting gyms, bowling alleys, body art studios, estheticians, hair dressers and massage therapists to reopen on April 25, 2020, as long as the businesses follow required measures.

Then, on April 23, 2020, Governor Kemp issued another order providing that, starting on April 27, 2020, nearly every type of business may reopen to the public—except for performance venues, amusement parks and public pools—as long as those businesses follow certain requirements. In general, nonessential businesses must not allow more than 10 persons to be present in a single location unless they can maintain 6 feet of distance between one another. The order outlines a host of additional requirements that specific types of businesses must follow:

• Essential businesses (defined by the U.S. Department of Homeland Security as being part of a critical infrastructure sector) must screen workers who exhibit signs of illness, enhance sanitation, implement teleworking for all possible workers and implement other required measures to mitigate the exposure and spread of COVID-19.
• Restaurants providing dine-in services must also screen workers, enhance sanitation and implement teleworking. Additionally, dine-in restaurants must require all employees to wear face coverings “at all times,” redesign seating arrangements to ensure that parties are seated at least 6 feet apart and follow other requirements. In total, there are 39 enumerated requirements that dine-in restaurants must follow.
• Gyms and fitness centers, in addition to screening workers, enhancing sanitation and implementing teleworking, must follow additional requirements, including limiting locker room use, halting group classes and requiring workers to patrol customer areas to enforce equipment wipe-down policies.
• Estheticians, hair dressers, massage therapists, body art studios and tanning facilities must not only screen workers, enhance sanitation and implement teleworking, but also implement additional measures “as practicable,” including providing services by appointment only and requiring customers to wait in their cars until the service provider is ready.
• Movie theaters, in addition to screening workers, enhancing sanitation and implementing teleworking, must also have ushers enforce social distancing protocols, apply tape to floors at ticket counters and concession stands to ensure social distancing, close arcade rooms and follow other requirements.
• Bowling alleys must follow a similar array of requirements and must provide customers with balls, shoes and other accessories directly instead of allowing customers to use self-service stations.
• Child care facilities must follow many of the above requirements and must also follow specific requirements, including prohibiting the use of toys that cannot be properly cleaned, only using washable bedding and prohibiting unnecessary visitors.
• Grocery stores, in addition to screening workers, enhancing sanitation and implementing teleworking, must also schedule specific hours for vulnerable populations to shop without other customers, reduce store hours, encourage customers to wear face coverings and follow other requirements.
• Other retail businesses must follow many of the above requirements and must also follow specific requirements, including limiting occupancy to 50 percent of the allowable fire code occupancy and sanitizing entrance and exit doors at least three times per day.

Requirements for Healthcare Practices

• Ambulatory surgery centers must follow many of the above requirements, as well as continuing the use of personal protective equipment, balancing the needs of patient care with the risk of providing that care and following other requirements.
• Dental practices must adhere to the American Dental Association’s “Interim Guidance for Minimizing Risk of COIVD-19 Transition” and “Face Shield Guidance,” as well as other restrictions.
• Optometrist practices must adhere to the American Optometric Association’s Practice Reactivation Preparedness Guide and the Georgia Optometric Association’s COVID-19 guidelines, as well as other requirements.
• Optician practices must adhere to the CDC’s “Recommendations for Office Disinfection” and “Recommendations for Employers.”

The mayors of many Georgia cities, including Atlanta, announced that they opposed Governor Kemp’s orders, arguing that it was too soon to allow businesses to reopen. Importantly, however, Governor Kemp’s orders explicitly prohibit enforcement of all county and municipal orders that are inconsistent with the governor’s order.

Employers Who Choose to Reopen Need to Take Steps to Mitigate the Risk of Lawsuits from Customers and Employees

Employers who choose to reopen their businesses to the public face legal challenges and risks. First and foremost, employers who reopen must follow the required sanitation and social distancing measures listed in the governor’s orders. Furthermore, state agencies, including the Board of Cosmetologists and Barbers, have issued their own guidelines that reopening businesses must follow, including requirements that the businesses ask clients whether they have been around anyone exhibiting a cough or fever.

Additionally, employers should take precautions to protect themselves against lawsuits from employees and customers. If an employer fails to implement proper sanitation and social distancing measures, the employer could be sued by a customer who contracts COVID-19 after visiting the business. Furthermore, employers who choose to reopen need to take steps to mitigate the risk of employees filing lawsuits alleging violations of discrimination, wage-and-hour, privacy and leave laws. For example:

• An employer choosing which employees return to work and which employees remain furloughed must make sure that those choices do not unlawfully discriminate against protected classes.
• If an employer takes employees’ temperatures before allowing them to start work, the employer should pay employees for that time, or else the employer could be exposed to a claim that the employer failed to pay employees for their “waiting time,” in violation of the Fair Labor Standards Act.
• If the employer asks employees about medical symptoms related to COVID-19, the employer needs to safeguard the employees’ answers, or else the employer could violate the employees’ privacy rights.
• An employer recalling employees back to work needs to be aware of the requirements of the Families First Coronavirus Response Act, or else the employer could be subject to a lawsuit for violating that act’s sick leave and family leave provisions.

Because of the risk of legal claims that could result from reopening to the public, Georgia employers should consider evaluating their practices with the assistance of counsel. Such an evaluation can help employers ramp up their operations without unnecessarily exposing themselves to preventable lawsuits.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan for, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

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If you have any questions about this Alert, please contact Joseph A. Ciucci, Adam Keating, Christopher D. Kanne, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.