Episode 56: The Best Way To Reopen Your Business

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This is The WealthAbility® Show with Tom Wheelwright. Way more money, way less taxes.

 

Tom Wheelwright:

Welcome to The WealthAbility® Show, where we're always discovering how to make way more money and pay way less taxes, even in a time of crisis. So, right now we're watching as people are thinking about coming back to work, and this is a scary time. There are employees who are scared, employers are scared. And so, how do you handle the risks of opening your business, or how do you handle the risks of being an employee going back to work? That's what we're going to discover today, is how to protect your employees as a business owner, how to protect your customers, how to protect your business. And some of it is protecting your business from your customers and your employees.

 

Tom Wheelwright:

So, we're going to discuss those risks, how to deal with that. We are very, very lucky to have an expert in this, Bob Robenalt, who is a partner with the law firm Fisher Phillips based in Columbus, Ohio. They are really at the forefront of this. They have taken the lead in Ohio as to this whole employment issue, and how to deal with the employment issue. And so, we're just really fortunate, Bob, to have you on the show. Welcome to The WealthAbility® Show, Bob.

 

Bob Robenalt:

Thanks for having me, Tom. I really appreciate the opportunity again. In our firm, it's a national firm, we do labor and employment work exclusively. And this has been an area where I think the firm's dedicated a lot of resources. We've got a COVID-19 task force that has dedicated a lot of resources to really trying to help employers solve this problem. We've got a very good website that provides a lot of free information to employers who are interested. And again, I know we've gotten a lot of compliments on that webpage, because it's been, I think, an important resource for a lot.

 

Tom Wheelwright:

Bob, go ahead and give us that website.

 

Bob Robenalt:

It's fisherphillips.com. F-I-S-H-E-R-P-H-I-L-L-I-P-S dot com.

 

Tom Wheelwright:

Awesome. Okay, well, so, Bob, let's talk about this, because this has been on my mind. We just this last weekend started to be opening up some states more than others. Some states really never shut down. South Dakota pretty much never shut down. So, let's start with employers, because we have a lot of listeners who are entrepreneurs.

 

Tom Wheelwright:

What are the risks that employers are looking at as they start to reopen, or think about reopening their businesses and bringing people back to work? They've been maybe remotely working. Now they're going to bring them back to work, whether they're restaurants, or whether they're bricks and mortar-type businesses. What are the risks that they have to be aware of?

 

Bob Robenalt:

I think there's several risks. One is the obvious risk that you're going to expose one of your employees at the workplace and they develop the virus. Obviously, if it spreads to other workers, that's even a worse scenario. And, again, we've seen some of those issues play out in certain industries. That causes problems for liability issues, workers' compensation issues. There's morale issues of your employees when they're coming back into the workplace, and these employees, again, are going to be discouraged from returning to work.

 

Bob Robenalt:

We're concerned that there may be also an uptick, employers may have an uptick in union activity if they're not good about how they're handling this situation and this scenario. That's, again, your factory workers. That concern is out there. So you have the risk of exposure, and the complications that will come from that risk and the liabilities that come from that risk.

 

Tom Wheelwright:

You mention the union risk, which I actually think is a really big risk because I grew up, my father was a printer, and he only had 40 employees. And they decided at one time to unionize. And he successfully broke them, but not before they had trashed our cars, and our house, and everything else. So I've got to be right upfront with everybody, I am not a big fan of unions. My dad, after that, he would go into a store that had a picket line to buy something just to cross the picket line. And these were people that he thought were his friends. They'd been employees for 30 years.

 

Tom Wheelwright:

And so, I think this is a very serious risk, even for smaller employers, particularly if they're in an industry that has unions already set up in the industry. Fortunately, we don't have unions yet in the CPA industry. Hopefully we won't. But I think the really big question here is, so what do you do, Bob? I was doing a Facebook Live this morning and had somebody say what they did with their tenants to get them to pay was, they gave everybody a discount. They said, “You know what? You pay your rent this month, you get a discount.” And so, they got people to pay their rent. I think that was a really good idea. That was a very proactive idea.

 

Tom Wheelwright:

What do you think employers ought to be doing, first of all, to get their workplaces ready? And then second of all, how do they deal with the natural fear of employees coming back to work in a group environment?

 

Bob Robenalt:

Yeah. And I think that that's really the important issue here, and that's what… You see this play out. You were talking about the union issue. And again, you've seen how that is starting to play out a little bit with Amazon and some of the other employers who are out there who are getting some pushback because of some problems out there associated with the return to work.

 

Bob Robenalt:

I think there's a high-profile whistleblower at Amazon. Those issues are certainly out there in terms of that risk. The reputational risk is definitely a concern for these employers. So, again, what do they do? I think, again, if you look at employers. I probably shouldn't be using real employers that are out there in the workplace, but to the extent there are employers-

 

Tom Wheelwright:

Oh, go for it, Bob.

 

Bob Robenalt:

… who are trying to do the right thing. You do have the Amazons of the world who've taken a lot of steps to protect their workers in their workplace. That's the first thing that employers need to do. So, prepare a plan to reopen. There are two really important protocols that are out there, CDC guidelines and the OSHA guideline. And they provide some very detailed instructions on reopening, and what employers need to do to protect their employees.

 

Bob Robenalt:

It's important for OSHA that employers do develop these plans and have something in place that'll help limit any kind of citations down the road if the employer has taken a good faith effort to adopt a program or plan. The second thing, following the federal, state and local guidelines for local re-openings is important. You want to be following your procedures. In Ohio, we've got a very proactive governor here, Governor DeWine, who's done, I think, a lot of people have been very impressed with how he's managed the process here, and how he's working through this dilemma of reopening the state. And there's a lot of push-pulls on him. But again, make sure you're following those state guidelines in terms of when you can reopen.

 

Bob Robenalt:

I'm going to give some tips to employers as they reopen that they should consider. One is, continue telework. Where you're able to have your employees telework, and you want to bring them back to work and provide that income. Again, the PPP program may provide you with an incentive to bring those employees back to work. You can bring them back to work and have them telework. That is a way to eliminate the risk.

 

Bob Robenalt:

Phased-in return to work. You don't need to bring everybody back at once, and it's probably important that you do phase in. You may want to consider staggered workshifts so that you don't have as many people in the plant or the facilities at one time as possible.

 

Bob Robenalt:

Requires employees to report symptoms when they get sick. High fever, cough, the classic symptoms that are out there for the COVID-19, and have them do that as soon as possible. If someone develops a problem and has those symptoms, they should be sent home to do an appropriate analysis, and possibly even seek healthcare options with respect to those issues.

 

Bob Robenalt:

Temperature checks. The Governor in the State of Ohio has indicated that employers should be encouraged to do temperature checks when their employees come to work. Other types of testing that can be done, and I think that's the next phase that we're going to be going through in this crisis is you're going to see more employers that are going to be looking to do COVID-19 testing, and also the antibody testing that is being developed. We're not there yet. I think that's one thing that's clear is that we're not there yet to do that type of testing on a ramped-up scale, but certainly employers are going to want to consider testing.

 

Bob Robenalt:

And in the meantime, and also you can take health background from employees. This is a different pandemic. This pandemic has created some different issues for employers. Typically, under the EEOC guidelines, you have to be very careful, cautious about the types of health questions you ask employees without stepping over some lines. But when you have a situation like this, I would refer people to the EEOC guidelines. And also if they have any questions about whether or not they're crossing any lines, they should talk with counsel to make sure they're not stepping over any of those lines as they do some of this testing and are requesting some background health information from their employees. But given the health risks, this is something that the EEOC is issuing some guidance on, and there's been some fits and starts with the guidance, but they are indicating the testing and health information.

 

Tom Wheelwright:

Let me ask you a question on this if I could, Bob. Do you think that there ought to be any release? Let's say for example… I give you my example, okay? My employees can all work for my CPA firm, they can all work from home. They can. They don't want to. So do you get a release from them?

 

Bob Robenalt:

Getting a release from an employee is something that is not going to really hold up. Internally, I think that's been an issue that we've debated within the firm. And certainly if you have workers, your liability is likely going to be a workers' compensation claim. And most states, and I think almost all of them have an exclusivity provision that prevents an employee from suing in negligence if they have workers' compensation coverage. And they also all have very strong public policies in their statutes to discourage an employer from requesting a waiver of workers' comp. In Ohio, you can't do it, except in very-

 

Tom Wheelwright:

So workers' comp is the only thing they can do. So, for example, these employees at these meat packing plants where it's just gone rampant, they don't have a lawsuit there? They've got workers' comp, that's it?

 

Bob Robenalt:

There are going to be lawsuits out there, and they're being tested right now. Some of the plaintiffs' bars, I think, are trying to cross over that bridge and get negligence lawsuits out there. There are intentional tort issues that are out there, too. So, there are some waivers to the exclusivity provisions of the Workers' Compensation Act where-

 

Tom Wheelwright:

So, Bob, the Senate's been… This has actually been in the news in the last few days, that in this next Stimulus Bill, the Senate is really pushing hard for employers to get a liability waiver. So, if they already have a liability waiver, and in other words there just can't be a negligence, why would we need legislation on that?

 

Bob Robenalt:

Well, I think those waivers are designed to protect customers, other people coming into that plant, and also other variants like that. Because it may be also providing some protection against these types of negligence lawsuits that are coming out of the woodwork where they may not be based.

 

Bob Robenalt:

Again, this is a new arena we're in. I'm not going to suggest that in some states that they might be some variant decisions that will come down and allow a negligence lawsuit to proceed. But again, the typical situation here is going to be a workers' compensation claim, and they're limited to the benefit in that situation.

 

Tom Wheelwright:

So, let's say that an employee… Okay, let me give you my example. So, we have our little pod, right? We all created our little pods. And our pod includes my wife and I, and my wife's daughter, her husband, and our grandchildren. And so, we're all social distance from everybody else.

 

Tom Wheelwright:

So, my wife and myself and my wife's daughter, we basically all work out of our house. And so, that's not an issue for us. But my son-in-law, he works for a big company. So, if you work for a big company, and then… Now, my wife is highly at risk due to some pulmonary issues. So, if you then require my son-in-law to go back to work, that either puts my wife at risk, or keeps us from ever seeing our grandchildren until this thing is completely past. So what rights do employees have on that? What can they do?

 

Bob Robenalt:

Well, I think the employees in those situations are going to be able to work with the employers. I think in many cases, employers are going to want to have a process that they can set up where they can work through some of these issues. I'm going to give you an example of one state that has enacted a proclamation. Governor Inslee in Washington State has enacted a proclamation for high-risk employees. And he set forth some workers' rights for those high-risk employees, and that includes that the employer needs to do everything possible to avoid exposing those high-risk employees to the virus.

 

Bob Robenalt:

That includes a proclamation that says that where someone has those underlying health conditions, their rights are protected in terms of their employment. And the alternatives that they set forth in this proclamation I think are important. It's basically telling these employers, “Look, you should do all of these options before you have to make the decision to let that person go.” One of them is alternative work assignments, telework. Alternative and remote work locations if feasible.

 

Bob Robenalt:

And again, the social distancing measures, using masks and those types of PPE in appropriate situations. Under this statute, they need to allow the employee to use accrued leave or unemployment benefits as an alternative to a work assignment. And again, the employers are prohibited from permanently replacing high-risk employees under this proclamation. So, it's a proclamation that Governor Inslee passed back on April 13th, 2020. I think there are at least one other state that may have a similar type of proclamation out there to protect high-risk employees.

 

Tom Wheelwright:

Which leaves 48 states without them.

 

Bob Robenalt:

In the 48 states without them, I think that those employees are going to have… It's going to be an uphill battle when it comes to unemployment compensation benefits [crosstalk 00:16:29].

 

Tom Wheelwright:

So of course this is a state-by-state thing, right? Because Arizona, where I am, Arizona is a at-will state. We can fire anybody basically anytime for anything. As opposed to California or some other states that-

 

Bob Robenalt:

Yeah, there are obviously exceptions to that which would include, for example, age discrimination, disability discrimination issues, which come into play here.

 

Tom Wheelwright:

So let me ask you that question. Is COVID-19 considered a disability issue?

 

Bob Robenalt:

A disability issue comes into play with someone who has a condition that's a permanent condition that creates an immunity problem for them, puts them at high risk.

 

Tom Wheelwright:

Okay.

 

Bob Robenalt:

That's the disability that protects [crosstalk 00:17:22].

 

Tom Wheelwright:

And that makes sense to me. But let's say that… Okay, let's go back to my son-in-law. He doesn't.

 

Bob Robenalt:

That's right.

 

Tom Wheelwright:

He's a very healthy young man. My wife does. So, it would seem to me that he's not protected at all.

 

Bob Robenalt:

I think your son-in-law has limited protections, that's exactly right, in this scenario. Because I will tell you that the alternatives are going to be that he self-isolate. There are things that he can do during the course of this pandemic to self-isolate and protect his family. And again, you see that people have to do that in many cases when they've been diagnosed with COVID-19, they will self-isolate. So I think that that requirement is where he would have to [crosstalk 00:18:08].

 

Tom Wheelwright:

Yeah, but it's one thing you're diagnosed. You're looking at 14 days. It's another thing if you're not diagnosed. And so, you're just at risk because every single day… You hear these politicians go, “Well, I got tested last week, so I don't have to wear a mask.” I'm going, “Well, you could have gotten it five minutes ago.” So you can't say that, right? Being tested for COVID-19 is a point in time. It's not like I'm never going to have it.

 

Tom Wheelwright:

And so, I think this is a really big societal challenge, frankly. It was a big deal in Italy. Italy, of course, was really the first country that just got really hammered with this. And you had all these elderly people who were dying alone. And to me, that's the saddest thing in the world. It literally brings tears to my eyes right now just thinking of that, of these people that have to be… We are social animals. Isolation is the worst thing you can do to a human being, literally. It is the worst form of torture that you can do to a human being. So what are you doing as far as people's rights by saying you must self-isolate?

 

Bob Robenalt:

Yeah. And again, what I'm telling you is really what I think may be one of the responses. The thing I think that employers should look to in these situations, again, is to have that dialogue with these employees who have those risks and have those concerns, and try and make the best process you can. For example, employers can provide for telework. They can provide for alternative work sites. They can provide for a lot of different other means that will help protect that employee and keep them out of the exposure headlight.

 

Tom Wheelwright:

I actually think that's probably the biggest issue here. And that is that we need to be proactive, and we need to be proactive in actually helping others, and helping others help us. So, for example, I think right now is the time to be the best employee ever. I think right now is the best time to get the employer of the year award. I think right now is the best time to get the landlord of the year award. And it's also the best time to get the tenant of the year award. Really, this is the opportunity, I think.

 

Tom Wheelwright:

I was telling people when this whole thing started, particularly the PPP process, the CPAs, we were working on the front line of that and still are. We have a network of 35 CPA firms, accounting firms around the country, and I told everybody, I said, “We made a decision in our CPA firm that we weren't going to charge.” And I'm saying, “You know what? Sometimes you put money in your financial bank, and sometimes you put money in your goodwill bank.” And I think that we've just never had such a time to build up our goodwill bank. And I don't think it matters whether you're an employee, an employer, a store owner. It doesn't matter who you are.

 

Bob Robenalt:

And to that point, I would make a couple issues. You do have reputational risks and concerns out there in terms of how you are handling this process. That's something that I think all employers and businesses are going to need to be sensitive to. And you also have morale issues with your employees.

 

Bob Robenalt:

Of course, the other side of that coin is, these essential workforces have been dealing with this dilemma for some time now where we've had people continuing to work and make these sacrifices to keep products on the shelves and food in the grocery store. So, as you're indicating, this is a societal challenge that we're facing like we haven't seen before. And I think an employer is well-advised to try and be on the positive side of that challenge, and try and do things that they can to help solve some of these problems.

 

Tom Wheelwright:

Well, and to that point, especially single people, a lot of them rely on work for their social experience. That's a big part of their social experience is work. It has been for years and years and years now. So now you're taking away that social experience. So, any thoughts on, “Okay, how do you deal with that social experience?”

 

Tom Wheelwright:

Outside of having those video conference meetings, those check-ins, which a lot of companies are doing on a regular basis, and I love that. Other than that, but that's half an hour, right? That's maybe an hour, but that's not a regular come in and socialize. So, any thoughts on how to deal with that side if you're an employer, or even an employee?

 

Bob Robenalt:

Those are very difficult questions. And it gets back to me, the term social distancing, I really don't like that term.

 

Tom Wheelwright:

Me neither.

 

Bob Robenalt:

I think the proper term is physical distancing is what we are going to practice. So, I think from the social perspective, I think individuals and employers and companies are really well-served to try and foster those types of Zoom meetings, events. Those types of things that will help keep their employees in contact with each other and keep that social network going. Because I agree with you, that is an important aspect.

 

Bob Robenalt:

But you've got to recognize that every case is different, every employer's different, every work site is different in this situation. So it's a very difficult dilemma, and there's no real one-size-fits-all solution to all of these issues. But I do think you're right. It's social interaction, and fostering that type of social interaction is very difficult. I don't know that I have the answers to it, Tom, but I certainly think that that is something that employers should be considering and working on.

 

Tom Wheelwright:

I appreciate that. So, here's what I've got that we've gone over. We do want to continue remote work and make that as easy as possible. And I suspect that's for the foreseeable future. We want to do a phase-in return; staggered work shifts; make sure that employees are required to report symptoms, and even to the point of temperature checks. And we may have to get to the point of regular testing.

 

Tom Wheelwright:

So we'll see what happens there as far as the requirements there. But I think the most important thing is to take a proactive approach to this and don't wait for the government to solve it. And Bob, I am just so appreciative to have your expertise on this call today. Any final words, one or two things that you go, “This is something that we haven't gone over. This is something that we really ought to be doing right now.”

 

Bob Robenalt:

To me, if you're an employer this comes down to developing a plan. It's no different than anything else you do in life. You need to develop a plan of action that's going to include a review of those CDC guidelines, a review of those OSHA guidelines, and come up with some way to deal with this issue so that you can safely return your employees to the work site, and they can feel good about it when they come into work and feel safe.

 

Bob Robenalt:

And again, there's no perfect one-size-fits-all measurement. But if people are looking at the guidances that are out there, they can develop those protocols that'll work for them. And again, we are in a different world now, so I think we have to recognize that. And employers, again, having to develop a plan of action that you can implement is always a good starting point.

 

Tom Wheelwright:

I love that. I think those are great words of wisdom. Bob Robenalt with Fisher Phillips. And again, Bob, I know you've got a great website. Where do we go to get more information on this?

 

Bob Robenalt:

It's fisherphillips.com. F-I-S-H-E-R-P-H-I-L-L-I-P-S dot com. And again, feel free to reach out to us or any of the attorneys in the firm. We have a broad number of offices all around the country, and again, we'd love to help out if we can.

 

Tom Wheelwright:

I really appreciate that. I think that our professions, legal and accounting, have been considered essential services during these times, and I think that's true. I think we are essential. And I think that a lot of attorneys and accountants, professionals, financial professionals, have really wanted to serve. And so, I love that. I love what you're doing, Bob. I love that you're taking the time to serve and really appreciate that.

 

Tom Wheelwright:

A lot of entrepreneurs, a lot of employers, as well as employees are just really concerned about, “How do I deal with this going forward?” This is going to be an issue. I would tell everybody, be proactive. Remember, this isn't just about you. It is about your community. It's about your family, it's about your community, and it's about everybody else.

 

Tom Wheelwright:

Remember, we don't wear masks just to protect ourselves. We do wear masks to protect other people. So, keep that in mind, and be proactive in everything you do. And Bob, thanks again for coming. And remember everyone, that when we take these steps, when we create a plan, and I love that, Bob. When you create a plan of action, you're always going to make way more money, and pay way less taxes. Thanks, and we'll see you next time.

 

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