Even as social distancing appears to have flattened the curve in urban centers hardest hit by COVID-19, recent reports from epidemiologists and the medical community suggest that we will face months and even years of recurring spikes in exposure and illness.

The new understanding of pandemics as a real threat to our society is likely to have broad impact in the twenty-first century––far outside Chester County. But what should we expect here, in our (thankfully) relatively safe local environment?

After we get the all-clear, it will be important to adhere to new norms that have been impressed upon us by state and local governments and health officials.

It is not too soon to contemplate how smart guidelines can be implemented in the workplace, in places where we go to relax, and at home. In particular, small business owners may find themselves with a new set of legal obligations relating to employee and customer health. In some instances, disregard or breach of these new legal obligations might even give rise to liability where there is a clear and present risk. It is important to have timely discussions among employers and employees, businessmen, and professionals as to how to prepare for reengagement as we restart our local economy.

Many guidelines already are ingrained in us by our upbringing, from schools, employment, and public messaging.  Hygienic warnings––such as omnipresent hand washing signs in restaurant bathrooms––may have seemed to some to have been directed at others, but now have much greater immediacy and importance in the post-pandemic world.  These practices should not be viewed as an infringement on individual liberties, but rather what all members of our society should embrace out of respect for others.  Employers can model good hygiene, and social distancing where appropriate, in subtle ways, without being unduly restrictive. On the most mundane level, when business opens up, employers have an obligation to provide sufficient supplies of hand sanitizers, antimicrobial soap, sterilizing cleaning supplies and disinfectants, and where appropriate face masks and latex gloves for employees, customers, and clients.

On a more general level, employers must examine their current policies and practices so that they actually make clear to employees with any kind of symptoms of illness that they should stay at home and if possible, work remotely, rather than risk infecting others at work. The Equal Employment Opportunity Commission (EEOC) has issued guidelines where there is a “direct threat” of a pandemic; in some instances it may be appropriate to scan employees’ temperatures as they enter the workplace––particularly employees in the service industry and retail establishments likely to have contact with members of the public. You should be aware of applicable regulations. Employers generally may want to consider voluntary testing programs or encourage vaccination against flu and coronavirus (when available). Employers should stay abreast of reliable information from epidemiologists.   Periodic discussions, talks, or webinars about hygiene and health will make sense to encourage best practices, reinforce the benefit to friends, family, and the community when such practices are followed, and to provide information about the evolving state of knowledge on epidemics.

Authoritative sources that are worthy of our attention warn that COVID-19 will not simply disappear this spring or summer, that it is likely to be prevalent somewhere in the fall, may still be a concern next year at this time. It also may be the first in a series of periodic pandemics. We cannot expect that maintaining our health is the responsibility of government––it is up to all of us to safeguard community health.

Just as the recent awareness about best practices in the workplace have been raised pre-pandemic as a result of sexual harassment claims, so, too, is it likely that that COVID-19 will raise the bar on hygienic and health norms and best practices by employers, post-pandemic.

If you have questions regarding opening your workplace contact Lamb McErlane PC. 610-430-8000.

 James “Jim” C. Sargent is a Partner and Co-Chairman of Lamb McErlane’s Appellate Advocacy Group and Litigation Department.  Jim represents small businesses, as well as major national and multinational manufacturers in litigation and appeals.  His practice includes employment contracts, restrictive covenants, commercial contracts, real estate and banking law and construction litigation. Jim also offers mediation services in commercial/construction/business ownership disputes. jsargent@lambmcerlane.com. 610-701-4417.