As shelter in place orders begin to be lifted across the U.S., it’s time to start thinking about what that means for your small business. I can not tell you how many questions I’ve gotten, not only from local business owners here in my home state, but all through The Legal Paige Community on Facebook and Instagram. Things are once again changing rapidly and there is a lot of confusion as to what you can and cannot do legally. While I don’t have all the answers, especially since much of the new rules are state dependent, I am here to help clarify and hopefully guide you to some resources to serve as a starting point for what’s going on in this new, reopened world. Your business and everyday practices are likely going to look a bit different now that you can work again and Covid-19 is still an issue that you will have to work around.
So your state has “opened”, what exactly does that mean? Can I open my business again?
So while I would love to say things have gone totally back to normal, business wise, that is definitely not the case. Just because a state is “open” that does NOT mean that you as a business owner can begin working at full capacity again. The vast majority of states have followed national guidance in instilling reopening plans that involve multiple phases of reopening. Each state governor has decided how, when, and how many phases there are. So your ability to reopen your business will depend entirely on your local state and county guidelines.
Most states will be evaluating their stats such as, the number of new Covid-19 cases, the number of Covid-19 deaths, inventory of medical supplies, and comparisons between all three. State officials will use these statistics to determine when to move into a new “phase” of reopening.
An important thing to consider is that while state governors can employ phase plans for the entire state, each county also has the option to put their own plans in place as well. These could place additional restrictions that you may need to keep in mind if your business spans multiple counties.
The main key here is to carefully read all of the documents in your state and county in regards to reopening, and making sure that you understand what that means for your business and how that translates to your ability to provide your products and services. Your state governor’s website is a great resource for all of the relevant reopening documents and information that you need to give you the information you need to plan your next steps.
Communicate with your clients what this phase of reopening means for your business.
As always, clear communication with your clients is key.
Once you know how this phase of reopening affects your business plans and ability to provide your clients with your services, make sure that you are proactive in communicating that with your clients and what the means for their contract with you. Whether this means rescheduling, providing services in an adapted way, or other restrictions, giving your clients notice of that allows them to adjust or reschedule if needed.
By being proactive, it allows you to further cultivate a positive relationship with your clients and gives you the opportunity to come to an ideal path to complete your contract as a team.
LEGAL things to think about (and why you may need them)
Now, the biggie that I’m sure you were all waiting for is the legal stuff. Many people have asked me about Covid related clauses in contracts, and releases in case someone gets sick or god forbid you are asymptomatic and somehow spread it to people while you’re working.
No one can FOR SURE say that they contracted the virus through “x” person. It could have been, but you also could have picked it up at the grocery store you went to prior to the wedding, or the gas station you pumped your gas at, or the person sitting next to you at the reception table. No one knows for sure. BUT, as a business owner, you never want to put yourself in a position that could make you potentially liable for a Covid infection, or someone coming after you for being involved in some way. This is why liability waivers are beyond important to consider and why we’ve created a simple release form just for you for this particular purpose.
Think about a Release & Waiver of Liability
A waive and release of liability form basically has your clients sign off on their knowledge of the risk of Covid, that they assume that risk, and that you cannot be held liable under any circumstances. It additionally has them agree to waive any and all potential rights to sue you under these circumstances.
This waiver can be used as an additional way to notify your clients of the risk associated with performing services at this time due to the unknown nature of contracting Covid-19 and to have them release you from liability associated with that risk. When you have it in writing, it sets the tone at the beginning of your relationship of the risks associated with the current pandemic. This is a single template contract that can be used in addition to your full contract, and is intended to be used on its own.
And A Covid-19 Specific Contract Clause
The last legal thing I wanted to touch on is a Covid-19 postponement and cancellation clause to add into new contracts that your clients sign. This is also something you wedding and event professionals are going to want to consider adding to your new contracts that clients will sign over the next year (or even more since people are predicting this could last 1-2 years total with or without a vaccine). Because Coronavirus is a "known" cause, it’s unlikely to fall under Force Majeure for new contracts signed because it’s not "unforeseeable" or "unpredictable". Moreover, as government orders start getting lifted, clients will be left having to make the decision whether to continue to host their event/wedding with the continuance of a health risk to their guests (it will also vary greatly depending on the location of the event). Thus, it is best to explicitly lay out what your business's policies are regarding Covid-19, the ability to reschedule (and number of times you will allow a reschedule with or without a fee), and the refundability or non-refundability of the retainer. This clause features the ability to reschedule with a proper "x" days notice, rescheduling without a fee for "x" amount of months, the responsibility of the client to work with your business to find a new rescheduled date available on your calendar, the potential increase in pricing for prime dates in 2021 (depending on your business practices), and the forfeit of the retainer in the event of pure cancellation.
If I can provide you with any helpful insight and takeaway its this: stay up to date with the phased reopening of your state and county including all regulations related to how you should operate your business with specific safety protocols and distancing guidelines, continually communicate with your clients via email (so it's in written form) and don’t think that one blanket email is enough because you need to be proactive each time something needs to be addressed or changes happen in the phased opening, and then consider adding in a few things to your legal toolkit as a small business such as a Covid-19 Postponement and Cancellation Clause to new clients who you book with, and then also consider having existing clients sign a release and waiver of liability short document before you provide them with services over the next few months so you keep your business safe from any potentials claims or lawsuits!
I wish you all the BEST with your business this spring and summer and know I’m here for you if you need anything. Just let me know by hopping into the TLP Community on Facebook and I’ll be there to answer any questions and continue this conversation.
THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. EVERY SITUATION IS DIFFERENT & IS FACT-SPECIFIC. A proper legal analysis is necessary based on your location and contract. Consult an attorney in your home state for advice regarding your contract.