Legal concerns while operating during the pandemic
Legal concerns while operating during the pandemic
09 OCTOBER 2020 9:06 AM

During a second online session of the Hospitality Law Conference, medical and legal experts spoke about the challenges employers will face with employees and guests during the coronavirus pandemic.

REPORT FROM THE U.S.—As hoteliers continue to operate through the pandemic, employers must ensure they are keeping their staff and guests healthy and safe.

During the second online Hospitality Law Conference this year, medical and legal experts walked through a number of issues hoteliers face while operating during the coronavirus pandemic.

Handling COVID-19-positive guests, employees
To stem the spread of the coronavirus, 80% of employers’ efforts should be focused on droplet contact spread, or person-to-person spread, said Kara Farley, M.D., former U.S. Navy flight surgeon and founder of Blue Ocean Health Services. The remaining 20% can be spent on surface contacts, such as from a table, because that is much less likely to transmit COVID-19.

Because of that, employers wouldn’t need to shut down their restaurant or hotel for a full cleaning if an employee tests positive, she said.

“You need to not panic, is the first thing,” she said. “It is going to happen. It is going to happen to everybody who has a place open. Someone is going to be positive for COVID, and they probably are going to have been in your establishment.”

If an employee does test positive, the employer should have that employee think back over the previous 48 hours, because that is when they likely started being able to spread the virus, Farley said. It takes time for a person to be able to spread the infection because their viral load is lower and grows as their symptoms increase. Talk to the employee calmly and find out when the symptoms started and then ask with whom they were in close contact—this is what’s known as contact tracing.

While public health services are supposed to do this, they might be overwhelmed currently, she said. Find out who had possible exposure and then notify them through email to let them know there was a positive COVID-19 case and if they were at the establishment on certain days they might have been exposed. This will let them know they might need to get tested, especially if they’ve become symptomatic.

For the businesses Farley consults with, she has not seen any spread with office spaces because people have been doing a good job of wearing masks, washing their hands and maintaining distances when talking with others.

If a customer notifies the restaurant or hotel he or she tested positive after visiting, as long as staff were following proper procedures and they were following the enhanced daily cleaning regimen, not much would need to change, Farley said. If a customer was in three days ago, the staff has already cleaned and sanitized where the customer was several times, so there shouldn’t be any need to worry as long as staff member cleaning it wore a mask and cleaned properly according to policy.

“Unless that person had specific close contact with someone on your staff that you need to notify, you probably should just tell them, ‘OK, thank you so much for notifying us,’” she said.

Managing employees
Employers are running into issues figuring out the appropriate amount of time employees should be out of work for COVID-19-related reasons, said Andria Ryan, partner at Fisher Phillips. They’re also figuring out how to deal with potential abuse of this time off and just general confusion over what to do.

“I'm often getting questions from people that say they have employees who are saying, ‘My friend's roommate’s girlfriend, who he had dinner with last week has COVID and I had dinner with him three weeks ago. I think I need to stay out,’” she said.

Employers should focus on complying with health guidance and protocols, Ryan said. Someone needs to become an expert on OSHA and U.S. Centers for Disease Control and Prevention guidance as well as state and local guidance. Most of the complaints arising are employment-related, rather than guest-related.

“The standards that the plaintiffs’ bar is going to look at when dealing with these cases is the CDC
Guides, OSHA's guides, local and state ordinances,” she said. “If we're not complying with them, then somebody is going to have a pretty good case for negligence. So have an expert within the organization.”

The No. 1 problem is bringing back employees exposed to COVID-19 too early, Ryan said. The CDC is now pushing employers away from a testing strategy to determine return to work because it is overloading testing facilities. It’s also saying don’t require a doctor’s note because that will overload the health care system, which isn’t wise during flu season.

“The CDC is pointing us to a symptom-based model, which requires you as an employer to talk to your employees about their symptoms,” Ryan said.

While that is uncomfortable to do, especially when trying to comply with HIPAA, the government has said during this pandemic, this type of medical inquiry is acceptable, she said.

An employee sick with COVID-19 needs to stay out of work until they are medically cleared to return, Ryan said. That might be one negative test or two negative tests, so look to local community health standards for guidance.

For employees who have been in contact with someone who is COVID-19-positive, either at work or outside of work, that is causing employers more consternation, she said. Contact tracing in the workplace means finding who the infected person has been within 6 feet of for 15 continuous minutes or more within a 48-hour period prior to symptoms starting.

Those who say they were exposed at home are problematic, she said. If the employee’s spouse is sick with COVID-19 but the employee is not, that’s continuous exposure at home.

“You can’t just quarantine them for the 14 days that we quarantine your hostess that got exposure from your other hostess,” she said. “You have to quarantine them for a 14-day period from the last date that they were exposed. Imagine this could turn into 23, 24, 38, 30 days if they’re living with someone who has COVID.”

Employers who believe their employees are making up their COVID-19 status can ask for a copy of the positive test, Ryan said. Health departments give anyone who has tested positive some confirmation they have it, and it’s reasonable for employers to ask for a copy of the positive test just as they would for a negative test for them to return to work.

Communicating with guests
Hoteliers need to manage their guests’ expectations before and during their visits, said Greg Duff, principal at Foster Garvey. One way is through policies and practices, particularly those dealing with how the operator is responding to the pandemic. These can include health screenings, social distancing, mandatory wearing of masks, elevator policies and how food will be served.

Hoteliers must also notify their guests of any and all changes in amenities or facilities at the property, he said. Prior to the pandemic, things such as F&B, gyms, pools and spas were all attractive features at hotels, but those were among the first to close when the pandemic started. Today, some of those might have reopened, but the operations have changed in some manner.

“It’s important to point out to guests early on in your communications how those amenities or facilities may have changed as a result of the pandemic,” he said. “It's important to communicate these items as early and as often as possible.”

When looking at the terms and conditions during the booking process, those should reflect any changes made in response to the pandemic and be available for guests to see ahead of time, he said. That helps avoid questions later if guests arrive and find their favorite restaurant has closed and that fact wasn’t clear when they booked their stay.

“Under no circumstances should guests first learn of these things upon arrival,” he said.

As conditions change, update that information, Duff said. Given the nature of the pandemic, it’s normal for restrictions and guidelines to change frequently. Regardless of whether these are coming from state and local health departments, the CDC or other health organizations, it’s critical hoteliers provide updated information to guests as the rules change. There should also be a mechanism that allows guests to request to know the latest rules, which could be a phone number or email address.

Rely on the health authorities for guidance, Duff said. Hoteliers don’t need to create their own rules, policies and practices and run the risk of them being inadequate. The CDC and local health departments have issued many guidelines on what establishments should do to mitigate the effects of the pandemic.

When asking guests to make their reservation online, as hoteliers do with the cancellation policy, ask guests to review or at least record that they have read and accepted the basic terms for COVID-19 compliance, he said.

At this point, there are multiple ways hoteliers can communicate with their guests to make sure guests receive notice of any changes, Duff said. It can be done through a confirmation email and through pre-arrival communications, such as one that asks if the stay is for a special occasion.

“I would argue that, again, if you're presenting this information for the first time at a time of registration or arrival, it's probably too late at least, technically,” he said. “If you've not had the opportunity to communicate those things in advance, I encourage you to do it there.”

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