Of Counsel Mark Neuberger was quoted in the Miami Herald article, “Is it really time to reopen amid coronavirus? Miami business leaders take it slowly.”
Many small business owners are likely feeling pressure to reopen before they may be ready to do so and, in the process, may expose themselves to serious legal jeopardy and financial ruin.
And few service businesses, restaurants or retail shops would survive being identified as a nexus of infection, Neuberger said.
He told the Miami Herald that he has been telling his clients not to rush into reopening, given the risks and unprecedented uncertainty over how a business must operate during a pandemic. “Going back to business as usual as if nothing happened is near-insanity, both legally, morally and business-wise,” he said. “We’re in territory no one has ever thought of before. This is boldly going where no one has gone before.
Before reopening, Neuberger notes, employers and business operators must digest and properly implement a complex set of regulations that strictly limit capacity, monitor that those are being observed, while running required wellness checks of employees at the start of every shift, keeping records to monitor for an outbreak, and protocols for shutting down quickly in cases of infection.
If they don’t follow the rules closely — and even if they do — business owners may be vulnerable to lawsuits from employees or customers in case of infection and, in the case of workers, to sanctions from the federal Occupational Safety and Health Agency, Neuberger said. Business lobbying groups have asked Congress and legislatures in Florida and other states for measures indemnifying businesses that follow official guidelines in case of virus transmission, though no action has been taken yet.
Neuberger said he believes some larger employers will start requiring workers to pass COVID-19 tests. That would previously have been barred as discriminatory under the Americans with Disabilities Act, but new guidance from the U.S. Labor Department would allow it, he said.