As states and municipalities begin to lift COVID-19 restrictions for reopening public establishments, business owners and operators are considering the many reasons to comply with new regulations and guidelines.
Preventative health and safety practices to protect employees and customers is of course top of mind for all managers. But the nature and progress of the pandemic almost guarantees that despite our best efforts, infection of customers or employees (regardless of where it was transmitted) will visit most restaurants, stores, fitness centers, office buildings, and other places open to the public.
One of the reasons not mentioned often in many “how to reopen” articles is the issue of legal risk – how to defend your business if you are faced with the unfortunate occurrence of an infection event. Personal injury claims based on COVID-19 are already being filed against businesses in courts across the country, and some fear that a wave of litigation in the wake of the pandemic will threaten economic recovery.
Legal risk for the health of patrons who are infected by COVID-19 is clear and present. According to the law firm McGuireWoods:
While each state has different laws, in general, a business will be liable for physical harm caused to its patrons if the business:
Courts will likely view COVID-19 as a “known or obvious danger” that businesses should anticipate and plan for in order to keep patrons safe. The potential harm the coronavirus can cause will not dissipate when businesses reopen, and businesses are not relieved of the duty of reasonable care they owe to patrons.
In addition to risk to patrons, establishments are understandably concerned about risks to their employees and contractors. OSHA has long established a “duty of care” requirement for workplace safety. To date, no court or administrative decisions have been issued that definitively clarify COVID-19 workplace safety obligations.
However, the fact that these have not been issued does not absolve an employer of risk. According to law firm Holland & Knight:
Furthermore, Holland & Knight notes that in the absence of clear COVID-19 OSHA rulings, an establishment will be judged on the concept of “duty of care”:
Law firm Gibson Dunn also recommends that establishments should consider going above and beyond government regulations and guidelines by instituting those from trade associations and other common industry practices: