Overview

As COVID-19 required governments to impose stay-athome orders and to distinguish between essential and nonessential businesses, Mayer Brown has been at the forefront of providing clients with up-to-date insights on the impacts to their businesses. Now, as governmental authorities address their responsibilities not just to impose restrictions, but to reopen economies and support businesses in resuming commercial activity, our dedicated Essential Business Team stands ready to help you anticipate, interpret and adjust to this transition.

And, as economies reopen and business restrictions evolve, new rules give rise to ancillary questions regarding how businesses should go about protecting the health and safety of employees and the general public given CDC, WHO and other guidance. This guide contains summaries of the current thinking and mandates in the jurisdictions that matter most for your business.

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Operation Restart—Governments and Businesses Around the Globe Tackle Emerging from a Pandemic

It was late December when the first cases of COVID- 19 were reported in China. Soon, the disease spread across the world in a global pandemic. In response, countries instituted various measures in an effort to slow its spread. One common measure has been to order non-essential businesses to suspend operations. Another has been to limit domestic and foreign travel. But as the economic toll increases and the pandemic begins to abate in certain regions, governments have begun to think about how they will restart their economies.

Although the process of reopening businesses is still in its early stages even where the pandemic's apex has apparently passed, this much is clear already: the process will be gradual, vary from jurisdiction to jurisdiction, and confront business with myriad issues.

When originally issued, orders for non-essential businesses to cease in-person operations were to remain in effect for several weeks or a month. But as the pandemic continued, multiple jurisdictions extended the orders, although some have recently relaxed restrictions on some types of commerce.

Driven in part by different experiences with COVID- 19 and in part by different policy proclivities, world governments are moving at different speeds toward the resumption of business as normal. In Germany, factories were never ordered to shut; in France and Italy, by contrast, factories were forced to close and have been ordered to remain closed. Even within a single country, different parts of the economy are likely to reopen at different times. Under the plan announced by Germany's Chancellor Merkel, for example, small stores have, subject to certain conditions, been allowed to reopen, while restaurants, bars, sporting venues, and concert halls remain closed through August. As New York Governor Andrew Cuomo has stated, "[t]here's no light switch" to throw that would enable "all businesses" to resume full operations "tomorrow." Consistent with that understanding, Governor Cuomo outlined a plan for a staged resumption of commercial activity "designed to open businesses in phases of priority," giving consideration to both the importance of the business and the risk of infection posed by its reopening.

In places, such as the United States, where businesses are subject to regulation at multiple levels of government, companies could be caught between conflicting directives. The spectre of such conflicts was raised in mid-April when President Trump initially asserted that he has "total" authority to determine when American businesses reopen, while state governors (backed by constitutional scholars) maintained that the decision rests with them and have formed multi-state pacts to coordinate the resumption of business across economically integrated regions.

Although the president subsequently backed away from his assertion of "total" authority, the same sort of conflict could be replicated at the state and local level if, for example, a municipality issues a business-closure order that state officials attempt to countermand. To cite one example Texas Governor Greg Abbott announced last Tuesday that if his new order expected on April 27 conflicts with any local stay-at-home orders—his rules will override anyone else's, while on the same day Dallas County Commissioners voted to extend their stay-at-home order until May 15, currently 15 days beyond the general state order.

When contemplating the resumption of nonessential business, authorities must take into account the risk of renewed infections. After having weathered the initial outbreak of COVID-19, certain Asian countries, including China and Singapore, reported new cases apparently attributable to international travelers and imposed travel restrictions as a result. Of course, domestic transmission of SARS-CoV-2, the virus that causes COVID-19, is also a significant concern as lockdown orders are relaxed.

Until an effective vaccination is developed and widely available, something that experts suggest is still at least a year away, effective testing of individuals to determine whether they are infected with SARS-CoV-2 will be essential to a safe resumption of business, particularly given that many infected people are contagious but asymptomatic. Some countries, such as South Korea and Germany, appear to have controlled the COVID-19 outbreak through aggressive testing followed by thorough contact tracing. In other countries, such as the US for example, testing has lagged and contact tracing is controversial, at least among certain segments of the population. Absent effective testing and contact tracing, any country that resumes in-person business activity risks a resurgence of COVID-19.

As companies contemplate reopening their premises when permitted, they will need to develop protocols to ensure the safety of their employees and customers. Adopting appropriate and effective measures will not only facilitate a successful resumption of activity despite a continued threat from SARS-CoV-2, but will also help companies avoid potential civil and regulatory liability. When designing and implementing such measures—which could involve medical-clearance, social-distancing, and sanitation protocols—companies will have to consider not only virology, but also various legal issues, such as privacy and anti-discrimination laws.

Indeed, it is already apparent that the COVID-19 pandemic has resulted in businesses facing legal claims. Thousands of US employees have filed complaints with the federal Occupational Safety and Health Administration alleging that their "essential business" employers—i.e., companies in the healthcare, supply chain, infrastructure, and other critical sectors that have been allowed to continue operations during the pandemic—required them to work without providing adequate protection against SARS-CoV-2. The risk of similar claims will undoubtedly accompany the reopening of the world economy.

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Originally Published 22 April, 2020

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