For many retailers, the coronavirus pandemic that has shuttered their stores and led them to lay off their staffs may not yet have a clear end in sight. But uncertain decisions lie ahead on when to reopen safely, attorneys said.
In the past week alone, more than a dozen states have issued various “stay at home” type orders, directing residents to self-isolate and for “nonessential” businesses to temporarily close. The Centers for Disease Control and Prevention and the Occupational Safety and Health Administration have warned that employees could be exposed to COVID-19 at their workplaces.
Amid those directives, President Trump said Tuesday he hoped businesses could reopen by the Easter holiday in April, driving a message that could complicate the calculation for many retailers contemplating business operations in the coming weeks.
“Ultimately, the goal is to ease the guidelines, and open things up to very large sections of our country as we near the end of a historic battle with the invisible enemy,” Trump said at a press briefing with the coronavirus task force Tuesday. “I said earlier today that I hope we can do this by Easter. I think that would be a great thing for our country and we’re all working very hard to make that a reality. We’ll be meeting with a lot of people to see if it can be done.”
So far, states including California, New York, New Jersey, Delaware, Indiana, Illinois, Connecticut, Michigan and several others have issued strict rules to help contain the outbreak in their states, albeit with varying degrees of business restrictions and differing definitions of what facilities are to be included in the definition of an “essential” business allowed to continue operating. Meanwhile, OSHA has said that “most American workers will likely experience low (caution) or medium exposure risk levels at their job or place of employment.”
The combination of the patchwork of new rules coming out daily at the federal and local level, and an apparently contrasting stance from the Trump administration will pose retailers with complicated choices, attorneys said.
“We appear to have the federal government coming in with a different message, and that has created a lot of confusion in the marketplace,” said Michelle Pardo, partner at Duane Morris LLP, where she is a team leader for the firm’s fashion, retail, consumer branded products industry group. “[And] there is no federal mandate that synchronizes what is essential and non-essential,” she said.
For apparel retailers considering whether to open, they will also have to make complicated operational choices about how to staff their stores safely, how many customers to admit into each store, and even whether it would be safe to allow customers to try on clothing.
According to the National Institutes of Health, the new coronavirus can survive for hours to days on surfaces, depending on the material of the surface. The virus has been found to survive for days on plastic and stainless steel surfaces, for instance.
“There’s a rapid change of governmental guidelines, orders and suggestions every day, and it’s a lot of keeping up, from a state and local perspective, and the federal [government],” said Nina Roket, partner at Olshan Frome Wolosky LLP, who leads the firm’s commercial leasing practice.
“In terms of when to reopen, if we hear from the federal government that openings should be taking place sooner rather than later, retailers will be faced with a difficult decision, and it will be a personal decision from a financial standpoint and the health and safety of their employees and customers,” she said.