Building Readiness: Planning, Prevention, Response, and Liability
1. How do we know when it is appropriate to resume our CAA's operations and services?*
According to the Center for Disease Control (CDC)’s guidance, Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019, all employers seeking to resume normal or phased business operations need to consider how best to decrease the spread of COVID-19 and lower the impact in their workplaces. This should include activities to:
- prevent and reduce transmission among employees,
- maintain healthy business operations, and
- maintain a healthy work environment.
A few critical questions to ask when planning for reopening after COVID-19-related closures are:
- Is your workplace in a community no longer requiring significant mitigation?
- Will reopening be in compliance with state and local orders?
- Will you be ready to protect employees at higher risk for severe illness?
A CAA should consider delaying reopening or taking extra precautionary measures as discussed in the CDC’s guidance and this FAQ until it can answer “yes” to each of these questions.
In addition to federal guidance, each CAA should consult applicable state and local level regulations and guidance related to business operations and providing services during the pandemic. In many cases, guidance issued by state or local authorities will be more responsive to how the pandemic is impacting individual CAAs in real time. A CAA should factor any state and local guidance into its plans to continue to operate and provide services during the pandemic.
A CAA should develop and prepare to implement strategies to ensure employee, client, and visitor safety, including communicating and training employees on new workplace protocols (see Prevention). A CAA should also establish procedures to identify potential or confirmed diagnoses of COVID-19 and to notify employees, clients, and others who may have come in contact with the sick individual (see Response). Finally, a CAA should become familiar with the potential liability issues that may arise (see Liability). A CAA may want to consider designating a staff person who will stay up to date on relevant guidance in one or more of these areas so that employees have a centralized and consistent source of information on these evolving issues.
2. What are the current federal guidelines for employers operating in-person workspaces during the pandemic?***
The Biden administration has issued an Executive Order on Protecting Worker Health and Safety, directing OSHA to promulgate an Emergency Temporary Standard (ETS) to address COVID-19 by March 15th, 2021. A draft ETS is currently being reviewed by the White House Office of Information and Regulatory Affairs, and CAPLAW will update this resource when a final version of the ETS is issued. In the meantime, CAAs should continue to follow non-binding federal guidance from OSHA and the CDC, as well as all applicable state and local-level guidance.
3. What if local or state orders are not aligned with federal guidance?**
It depends. In some cases, local and state orders are intentionally designed to be stricter than the guidance issued by the CDC or the President. Typically, this is because of the scope and severity of COVID-19 transmission in a particular state or locale. Other states have determined either that it is safe to maintain onsite operations, to allow onsite operations to restart earlier than indicated by the federal gating criteria, or that allowing onsite operations is in the best interest of the state. When faced with conflicting guidance, there are a few factors CAAs should consider.
First, consider whether the local or state order is binding, and any penalties associated with noncompliance. Some states have extended stay-at-home orders beyond the period required by the White House, and in such cases, CAAs must follow state or local directives. If a state calls for a phased process, the CAA should determine whether this is an enforceable order, or whether it’s a guideline for best practice. At this point, federal guidance is a recommendation rather than a binding requirement. State and local orders, however, may carry different levels of authoritativeness and be accompanied by penalties for failure to comply.
Second, because the impact of COVID-19 has varied widely across communities, your local and/or state guidance is likely to be more applicable to your CAA’s operations than federal guidelines. Further, many states are coordinating regionally to develop consistent plans, and are looking to guidance from the CDC and the White House to inform the state-level decisions. This again supports deferring to the guidelines of the level of government closest to you.
Finally, think about your CAA’s decision from a liability perspective. If someone such as an employee, client, or visitor who contracts COVID-19 brings a claim alleging your CAA was negligent and failed to take reasonable steps to prevent the spread of COVID-19, your CAA has a stronger defense if you can show that you followed the strictest guidance—local, state, or federal. But this does not mean that it always makes sense to follow the strictest guidelines. Your CAA could still argue that you satisfied your duty to act reasonably by following local or state guidelines, even if federal guidance is stricter, since the state and local recommendations presumably consider factors that are specific to and reasonable for your community.
4. What if funding source guidance differs from local or state orders and federal guidance?**
Some funding sources may require or expect your CAA to maintain onsite operations or at least certain services. If funding source expectations conflict with local, state, or federal guidelines, and if your CAA disagrees with the funding source’s approach, we recommend engaging in a discussion of the differences, presenting your CAA’s plan for ensuring employee and client safety, and seeking permission to restart onsite operations, close, or remain closed, as applicable. Because many CAAs provide what are deemed to be essential services under stay-at-home orders, CAAs may ultimately have little choice as to whether programs continue, and must plan to mitigate the risks of COVID-19 accordingly.
5. Can we use our federal funds to pay for COVID-19 prevention and response efforts in the workplace?
It will depend on the specific funding source. The supplemental funding allocated under the CARES Act for CSBG specifically supports the use of funding to “prevent, prepare for, and respond to coronavirus.” OCS IM #157 also addresses using CSBG funds to make facilities safe and to provide critical resources, such as paying for sanitation, gloves, and cleaning services.
The Head Start supplemental funding under the CARES Act allows Head Start programs to undertake a wide range of one-time, specific actions or activities in response to COVID-19. Head Start Program Instruction ACF-PI-HS-20-03 specifically permits using Head Start funds for: (1) training and professional development for staff on infectious disease management; (2) purchasing necessary supplies and contracted services to sanitize and clean facilities and vehicles; and (3) other actions that are necessary to maintain and resume the operation of programs, such as hiring substitute staff, investing in technology infrastructure, making improvements to air conditioning systems, or other emergency assistance.
*Updated October 15, 2020
**Updated December 4, 2020
***Updated April 15, 2021
This resource is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-03. Any opinion, findings, conclusions, or recommendations expressed in these materials are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.