Following the peak of the COVID-19 pandemic--or perhaps the first wave--state and local authorities across the country are beginning to lift stay-at-home orders, and small businesses are now trying to figure out how they'll reopen.

But with no precedent for this type of situation and competing sources of information and guidance vying for attention and compliance, small business owners now find themselves on a virtual island trying to balance state and local directives with federal guidance, economic well-being against physical health, and individual freedom versus common good.

While most everyone shares the same primary goal--to get business moving again while safeguarding the health and safety of employees and customers--the guidance for how small business owners should define their "new normal" varies widely, depending on the type of business and inherent risk levels.

Office Employees: Will the Workplace Vanish?

In recent weeks, Google and Facebook told their employees they could stay home until 2021. Capital One informed its 40,000 workers they will work from home until after Labor Day, at which time they'll reassess the situation. For Amazon workers, the report-back date is set for October. Some companies are making the remote-work policy permanent: Twitter, for example, recently said its employees would be allowed to work from home indefinitely--even after the pandemic fully abates. Nationwide Insurance, meanwhile, is closing five offices around the country and telling those 4,000 affected staffers their new workplace is their homeplace. 

SMB owners looking for cues from these large companies on how to handle their own situations should recognize that brigades of corporate attorneys, keen on corporate risk and liability mitigation, definitely had a say in these decisions. Here's why: suppose a healthy employee, working from home for the last couple of months, is called back into the office after lockdown is lifted, and days later, they test positive for COVID-19. Is the employer at fault and liable for damages?

This question is now front-and-center for corporate attorneys and boards of directors around the country as they strategize next steps, and the issue is just as relevant as cash flow and customer demand for SMBs because of the potential for financial loss. And that's just one potential source of lawsuits. There are plenty more.

The Specter of Legal Liability

For example, if a company--trying in good faith to take prudent precautions--requires employees to submit to temperature checks or regular coronavirus testing, such actions might very well violate privacy laws. In addition, if a company doesn't heed every new piece of guidance issued by the Occupational Safety and Health Administration (OSHA) or CDC, that, too, could open them up to litigation--not only from employees, but also customers, suppliers, and vendors.

For many companies, it may just be easier and less risky to continue allowing employees to work at home, especially since it seems to be working well. It's "a great thing for the company and for the employees, who don't want to get back in cars and commute for two hours. That's lost productivity. I see it happening way more in the future," Joan Burke, chief people officer for San Francisco-based tech company DocuSign, told The New York Times.

The Service Industry:  Where Physical Contact Is Unavoidable

While large and small white-collar companies--armed with IT infrastructures that facilitate staffers operating remotely--are at the forefront of the work-from-home movement, no such solution exists for bars, restaurants, tattoo parlors, salons, and other types of businesses for which close contact between workers and customers is unavoidable.

These types of businesses have arguably experienced the most profound disruptions of any business category, as most states mandated full-stop shutdowns of normal business operations. As these business owners look to become fully operational again, they'll rely on their own set of strategies to mitigate health and liability risks. Those strategies include:

  • Stagger appointments and/or reduce capacity: The goal is to allow for adequate social distancing by having fewer people in a space at any given time. One tactic that is gaining widespread adoption is doing away with "waiting areas" in favor of customers waiting outside or in their cars for a phone call or text message that the business is ready for them to enter.
  • Allow time for cleaning/disinfection between appointments/uses: To help ease anxieties of your customers and inspire confidence in your ability to operate under a new normal, you also might consider placing signage at workstations along the lines of "At 2:50 p.m., this area was thoroughly cleaned and disinfected for your health and safety."
  • Additional guidance: Mindbody, which provides management software for the wellness services industry, has put together a comprehensive PDF resource of tips and ideas to help wellness businesses reopen and operate successfully under the threat of COVID-19. The National Restaurant Association has done the same for the bar and restaurant industry.

Manufacturing/Construction: Reopening Under Strict Protocols

The production sectors have been some of the first industries to get the go-ahead to restart operations, and they're doing so under some of the clearest, strictest directives of any industry.

A great example of such guidance comes from the Commonwealth of Massachusetts, where, on May 18, state officials released industry-specific guidance for both construction and manufacturing sectors.

On construction sites, the guidelines include:

  • A zero-tolerance policy for sick workers reporting to work
  • No handshakes on the job
  • Mandatory hand washing stations
  • Regular cleaning of all surfaces, with common areas being disinfected at least once per day
  • A "no-congregation" policy that requires individuals to stay at least six feet apart
  • Required wearing of cut-resistant gloves
  • No carpooling
  • Seating areas in large gathering areas will have reduced seating to promote social distancing
  • Required hand-washing and sanitizing before leaving the job site
  • An appointed "COVID-19 officer" on construction sites who submits daily, written reports to mangement
  • If a worker becomes infected, the individual must leave the job site and report to a standards-compliant health care provider; the contractor must then collaborate with the local board of health to sanitize the site and identify all people, places, and equipment that may have been exposed

Additional Mandates for Manufacturers 

  • Re-engineering workstations and common areas to allow for social distancing
  • Onsite cafeterias serving prepackaged food only
  • Required face coverings, unless they pose a safety hazard
  • Staggered lunch and work breaks to prevent large gatherings
  • Physical partitions between workers where social distancing cannot be implemented
  • Facilities must be cleaned after each shift, minimum
  • If a worker becomes sick with COVID-19, the workplace must shutdown for deep cleaning and disinfection

Where to Get Other Guidelines

"This is such an unprecedented situation. Businesses want to step up and do the right thing, but ... even in doing all the right things, it's really hard to control its spread," as Neil Bradley, chief policy officer at the U.S. Chamber of Commerce, told NPR. For additional help, here are additional resources for companies: