A Return to Normalcy? How Employers Can Prepare For Post COVID-19 Compliance

While America’s war with COVID-19 wages on, officials throughout the country and across various industries have begun to unveil broad plans to relax strict guidance and emergency measures meant to contain the spread of the coronavirus. The change in trajectory follows new federal guidelines outlining conditions for states to reopen announced by President Donald Trump on April 16, 2020.

Though governors will have discretion over how and when to oxygenate stagnant areas of the economy and breathe life back into their communities, there is no question that a return to “normal life” will be anything but normal.

Amid waves of new guidance, evolving regulations, and new concerns for employers and those in industries such as health care, construction, and other essential or high-risk sectors, preparedness will be key to protecting workers, communities, and companies looking to get back on their feet in what may be an unpredictable second quarter.

A Start to Reopening

Throughout the COVID-19 crisis, officials have struggled to strike a balance between overestimating the threat of the virus, which brings economic harm and job loss, and underestimating it, which costs lives. Debate over new federal models charting possible scenarios for different levels of transmissibility and a “best guess” scenario show just how difficult it can be to track a moving target.

Still, mounting pressure means America will be reopening in the coming weeks and months; some states have already begun to scale back emergency directives. Texas, for example, recently reduced restrictions established under a previous executive order to allow providers to perform less urgent medical procedures.

Nevertheless, experts say the road back to normal will be a carefully calculated, localized approach, and employers should be taking steps now to best position themselves for compliance with new guidelines, social distancing policies, and workplace health and safety standards in a post-COVID-19 world.

At Hendershot Cowart P.C., our legal team is readily available to help clients across Texas as they work to navigate coronavirus considerations amid a complex and evolving regulatory landscape.

State Preparedness Responsibilities & Gating Criteria

According to the newly released Guidelines for Opening Up America Again, states will need to meet criteria for core preparedness responsibilities which address:

  1. Testing and contact tracing;
  2. Health care system capacity;
  3. Plans to mitigate risks and protect high-risk individuals, high-risk workers, and the public.

Before proceeding to their phased comeback, states must also satisfy state or regional gating criteria, which means there must be:

  • A continuous downward trend in reported cases of influenza-like illnesses;
  • A downward trajectory of documented cases and positive tests;
  • Capacity for hospitals to treat all patients without crisis care and implement testing programs for at-risk health care workers.

Guidelines for Opening Up America Again: Employer Considerations

States and regions that satisfy gating criteria can progress, per local discretion, along the three-phase approach outlined in the Guidelines for Opening Up America Again. Each phase of the plan provides guidance for both individuals and employers. We outline those applicable to employers below:

Phase 1

During Phase 1, employers across all industries are advised to:

  • Encourage remote work when possible;
  • Structure any return to work in phases, if possible;
  • Enforce strict social distancing, and close common areas where interaction is likely;
  • Minimize non-essential travel, and follow CDC guidelines regarding quarantines;
  • Consider special accommodations for employees / customers in high-risk populations.

In addition to general guidelines applicable to all employers, the Guidelines also provide guidance to specific types of employers:

  • Health care providers in regions with stabilizing COVID-19 trends may resume, as appropriate and on an outpatient basis, elective surgeries in compliance with newly relaxed CMS guidelines.
  • Schools and youth organizations (i.e. camps, daycares, etc.) which are currently closed should remain closed.
  • Hospital and senior living facility visitation should be prohibited, and workers who interact with patients / residents must continue to comply with hygiene protocols and relevant guidance.
  • Large venues such as places of worship, sporting venues, movie theaters, and restaurants can operate under physical distancing policies. Bars must remain closed
  • Gyms may re-open if they comply with strict sanitation and physical distancing guidelines.

Phase 2

For states that satisfy gating criteria with no evidence of a rebound may move on to Phase 2 of the Guidelines. For employers, key considerations include:

  • Continued encouragement of remoted work when possible;
  • Continued closure of common areas, or enforcement of moderate social distancing policies;
  • Continued consideration of special accommodations for vulnerable employees / customers.

For specific employers, the following applies:

  • Elective, non-emergency surgeries may resume on an outpatient and in-patient basis, in compliance with CMS guidelines.
  • Schools and youth organizations can reopen;
  • Bars may open and operate with reduced standing-room occupancy, when possible;
  • Gyms and large venues may remain open if they comply with physical distancing protocols.
  • Hospital and senior care facility visitation will remain prohibited.

Phase 3

States with no evidence of a rebound and which meet gating criteria a third time may resume unrestricted staffing of worksites in Phase 3.

Specific employers may also resume operations, but should comply with physical distancing protocols as appropriate, and sanitation / hygiene guidelines.

Hendershot Cowart P.C.: Guided Counsel for COVID-19 Concerns

Moves to reopen the country will vary by local municipality, county, and state, and will always be subject to new data and guidance. In any event, the mentality of Americans is visibly shifting, and employers need to be on the forefront of preparing their businesses for a return to whatever “normalcy” may come.

At Hendershot Coward, P.C., our award-winning legal team is available to help employers across all industries in a range of matters, including those involving:

  • Health and medical law
  • Commercial construction
  • Comprehensive return-to-work and compliance plans
  • Partnership, shareholder, and director disputes
  • Contract drafting, review, and litigation
  • OSHA compliance and violations defense
  • Insurance litigation

To speak with an attorney, call or contact us online.


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