Here’s some stuff you might like.
“Opinions expressed are sophomoric”: That was the note a guy left when unsubscribing from this august email on March 23. He had been a subscriber for over a year and thus was exposed to a lot of my sophomoric opinions. What pushed him over the edge? In the March 23 edition of the BBR, the one right after Governor Brown issued the stay home order, I observed that while it sure seemed like some form of shutdown was warranted, such a shutdown would have profound negative consequences. For that reason, I wrote, the Governor should give Oregonians specifics about what were the goals of the shutdown, so Oregonians can make informed decisions about the efficacy and duration of the shutdown in light of its trade-offs. The guy’s response was not atypical for many in the early days of the shutdown, who viewed any discussion of trade-offs or negative impacts from the shutdown, even when expressed while supporting the shutdown as perhaps the least bad choice at the time, as tantamount to advocating for more COVID-19 deaths.
The negative consequences of the shutdown began with stunning increases in unemployment and are rippling through nearly every corner of the economy and society. For example, it turns out between March 16 and April 19, 245 more Oregonians died than is typical for that time period. Seventy-eight of those died from COVID-19, according to official counts. Seven percent more deaths occurred at home, versus in a hospital. Now, were some of the 167 excess deaths not officially attributed to COVID-19 actually from COVID-19 but not reported as such? Quite possibly. But given the confluence of more people dying at home versus the hospital, plus significantly higher death totals, plus the existence of the Governor’s order prohibiting hospitals and some other health care providers from providing non-emergent services, suggests that some of those excess deaths may have been due to people being unable to receive the health care they needed.
Thankfully, as of today, the Governor has allowed hospitals to opt in to treating non-emergent cases under certain parameters. It is nearly certain that the partial hospital closure had, at the very least, negative health consequences for many Oregonians. Otherwise, why would hospitals provide – and insurance cover – non-emergent services in the first place? There is a cost – both financial and in human health and lives – to the various shutdown orders, and to acknowledge and factor that cost into public policy is not sophomoric. It’s essential.
A Thumb on the Scale for Liberty: A Willamette University law professor believes the Governor’s shutdown order may be unlawful because it is open-ended and not limited to 14 days. His reasoning: there are two emergency powers statutes, and the one specifically about epidemics requires an executive order to be limited to 14 days, though subject to renewal. I haven’t spent a lot of time thinking about it, but preliminarily I think that legal analysis is not persuasive. The legislature didn’t choose to amend the more general statute, which has no time limit, when it passed the later, more specific law. I can’t think of a reason why the Governor could not choose to rest her authority on the more general statute, which the legislature has chosen to retain, if she wants.
While I think the Governor’s order is probably statutorily okay, the professor is spot on when he says an order limited in duration is preferred because it “puts the thumb on the scale in favor of liberty and the rule of law.” The Governor’s authority to enact emergency orders should be (and has been) an extraordinary measure that is undertaken only in the most extreme circumstances. Because the power to restrain Oregonians from exercising what, in more normal times, are rights protected by the U.S. and Oregon constitutions, the burden of demonstrating the initial and ongoing necessity of those restraints must rest with the Governor. An order with a sunset date requires the Governor to justify to Oregonians that the order must remain in place. Without a sunset, the burden is on Oregonians who believe the order should be changed or rescinded.
Part of the reopening plan, which will presumably come in the form of another emergency order, should include time limits for ongoing restrictions, which may be extended as warranted by infection rates or hospital capacity or whatever metric it is the Governor is relying upon. This would help to bring Oregon closer to the uniquely and essential American principle that individuals’ constitutional rights may only be infringed by the government as seldom and as minimally and for as short a time as possible.
Liability for Businesses That are Open or Reopen: If you operate your business during the COVID-19 pandemic, might you get sued? The answer is yes, in part because, as I frequently tell my clients, anyone can sue you for anything. The goal is to minimize the risk of losing such a lawsuit if it’s filed. Some people are urging Congress and state legislatures to provide a kind of safe harbor for businesses that reopen, in order to reduce the disincentive to reopen caused by liability risk. Unless and until that happens, businesses that want to operate need to piece together a reasonable strategy based upon the basic negligence standard that they must act reasonably to avoid foreseeable harm. The people most likely to incur harm due to your business operations are customers and employees.
To protect customers, businesses should follow any of the Governor’s orders in place at the time. Right now, it’s still her original shutdown order, for most businesses, which requires businesses to allow employees to work from home if possible and requires appointment of a physical distancing czar to ensure proper precautions are followed. These are requirements you must follow. If you don’t the state could force you to close. Failure to abide by the orders will also likely be good evidence of breach of your duty of reasonable care in the event someone gets sick as a result. In addition, businesses should follow relevant CDC guidance about distancing and other measures such as hand washing, etc. It’s important to understand that following these orders and guidelines do not necessarily protect a business from liability. Remember that the relevant standard is to exercise reasonable care. So, if a business has reason to believe that more stringent measures are required in order to protect customers from COVID-19, then the business should take additional, reasonable steps.
To protect employees, the same reasonableness standard applies in many cases, but there are also a host of statutory issues to worry about. The Governor yesterday released draft guidelines that recommend steps for businesses to follow. Even to the degree those are suggestions, it is advisable for businesses to heed them as those suggestions are very likely to establish at least a floor for reasonable care in this context, even if they are not required. In fact, even though they are in draft form currently, it would be a good idea to begin to follow them now. If an employee thinks they’re sick, remember that businesses are restricted from asking questions about the employee’s health except under certain circumstances. These kinds of issues differ significantly and so if a business has an employee complain or ask questions about the business’s COVID-19 policies or approach, it’s a very good idea to talk to a lawyer. There are many factors to consider, and some of them are at odds with each other. Getting sued is really expensive and unpleasant.
Businesses should contact their insurance agent to ask two questions: (1) Does the current business policy cover claims against claims by either employees or customers who may contract COVID-19 at or due to your business and if not, is there such a policy available? And, (2) Does the business have employment practices coverage (this may be a standalone policy or part of the general business policy) that covers employee claims resulting from COVID-19 and if not is such a policy available? Employment practices insurance is always a good idea for businesses with lots of employees; it’s an even better idea now. There is little question that we will see a spike in employment claims either directly due to COVID-19 exposure or due to alleged wrongful termination for unrelated reasons.
There are and will be more guidelines and orders affecting specific types of businesses, which I’ve not covered here. As always, every business and situation is different and business owners and operators should talk to their attorney to get specific advice about their situation. These are general guidelines only, and not intended to serve as legal advice.
Now this is Sophomoric Content:
1. Wendy’s announces it will give a free four-piece chicken nuggets to each customer last Friday, to show support for its customers during the COVID-19 crisis.
2. A Portland man with the Twitter handle “Skweezy Jibbs” spent five hours driving to 17 different Wendy’s twice to take full advantage of the offer, to the tune of 136 nuggets.
3. It looks like he did it while using a pair of Hanes underwear as a mask. (Click the link and zoom in on the photo of the Skweez posing with his nugs).
With five hours, a pair of undies and, God willing, a Kevlar-lined digestive tract, Skweezy Jibbs has defined this era.
Open Businesses: Last week, I asked BBR subscribers who own or work at a business that’s open and could use some exposure to email me. Here are the responses so far. I hope you’ll check them out, if for no other reason than these folks have the same deeply troubling Friday reading habit as you.
S & F Land Services – Bend/Portland – land surveying and remote sensing – (541)797-0954
Plus Property Management – Bend/Redmond – commercial and residential property management service – (541)389-2486
Nine Peaks Solutions – Bend – technology consulting/paperless document management – (541)797-7595
The Haven – Bend – co-working and meeting space – (541)633-7174
Bend Mail and More – Bend – packing/shipping/mailing service – (541)797-0475
Cascade Views Realty – Central OR residential real estate broke – (541)678-2232
Matrix Integrated – Bend/Portland – European auto repair, maintenance and performance – (541)241-5348
Webfoot Painting – Central OR – painting, carpentry and Trex decking – (541)204-8737
VIVA!GYN – Bend – gynecology – (541)323-3747
The Menopause Center – Bend – menopausal care – (541)323-0177
If you missed out on this week’s list, respond to this email with the url for your business, what it does, and a phone number for the business. I’ll run a follow-up list next week(ish) if I get any emails.
Your friends can sign up to receive the Bend Business Roundup here. No sales, no spam. Just the weekly email you’ve come to know and love.
Have a great weekend!