By the beginning of May, almost 800 lawsuits had been filed in the United States related to the COVID-19 pandemic. Although the United States Congress and state legislatures are rushing to enact measures to protect businesses from liability as operating restrictions are lifting, it is unlikely that any legislation enacted will result in a complete waiver of liability. Additionally, it is expected that plaintiffs’ attorneys will test the validity and the boundaries of any enacted legislation in both the federal and the state courts.

This means that the decisions businesses make in the near term as well as their actions to implement those decisions will be scrutinized by plaintiffs’ attorneys, judges, and juries. So, as your business starts to resume its normal operations, your decisions and your actions should be deliberate, thoughtful, and geared toward ensuring the safety of your employees and customers. Businesses should also presume that they will be sued because of the manner in which operations were resumed during the COVID-19 pandemic and will need to be able to establish what actions the business took and why. For this reason, all businesses should be doing the following three things to help defend against what may be inevitable litigation:

1. Create a written operational plan related to COVID-19. Drawing from governmental orders that describe how business reopening should take place, this plan should address how operations will change, whether employees and customers will be tested and/or screened, new cleaning and sanitization protocols, whether employees and customers have to wear protective gear, how social distancing will be implemented, whether the business will provide sick rooms, new rules for use of common areas, whether the business will allow visitors at its worksites, etc. This should not be a plan that is drafted and shelved; the written plan needs to be a thoughtful, well-documented plan that is actually implemented. Not sure where to start or how to create a written operational plan? Engage outside counsel who can assist you with developing and drafting operational and safe work plans that are specific to the needs of your business.
2. Train early and often. Businesses need to be able to establish in litigation that they not only formulated a plan to keep employees and customers safe, but that they actually implemented the plan. This means businesses must train management, supervisors, and employees regarding the changes being implemented before the employees start returning to their jobsites, if possible, or as soon as practical after the business develops its written plan. Training can be done remotely through a video conference before employees return to work and onsite as employees begin to return to work. Regardless of the manner in which the training is conducted, businesses need to review all changes to its policies, procedures, and protocols during the training process. As supervisors identify failures to properly implement any portion of the written plan, additional training needs to be conducted during weekly staff meetings, safety meetings, or on an ad hoc basis.
3. Document, document, document. Your written plans related to any new safety and operational policies, procedures, and protocols should be provided to each employee in the same manner in which you provide employees with your employee handbook. Businesses should require employees to sign an acknowledgement that they have received a copy of the written plan (or that the plan has been made available to them electronically) and that they have reviewed and understand the new policies, procedures, and protocols. Attendance records at training sessions should be maintained along with an agenda identifying the date of the training and the topics covered for every training session. If training is conducted at a regularly scheduled staff or safety meeting, records of those trainings should be maintained as well. This means every business should identify a point person who is responsible for collecting and maintaining all documents related to COVID-19 policies, procedures, and protocols.

A final word of advice — remember that most, if not all, of your communications will be discoverable. This includes text messages. The less formal communication is, the more difficult it can be to capture the context of the communication. Communications taken out of context often appear more problematic than they really are when the full context of the communication is clear. For this reason, business leaders should assume their emails and texts will be read in court and maybe in the news media one day. For this reason, executives, managers, and supervisors should avoid using emojis and abbreviations when communicating by text. Additionally, strong consideration should be given to whether an issue is better handled by a phone (or video) call than creating a written record by email or text.