Mitigate COVID-19 Liability and Risk with Legal Duty of Care

Brian Carpizo

July 3, 2020

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.

Clear and Present Legal Risk - "Duty of Care"

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:

  • Knows of, or by the exercise of reasonable care would discover, a dangerous condition present in the business premises, and should realize that it involves an unreasonable risk of harm to those patrons
  • Should expect that the patrons will not discover or realize the danger, or fail to protect themselves against it
  • Fails to exercise reasonable care to protect its patrons against the danger

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:

…the employer’s obligation in implementing a COVID-19 work environment safety policy remains consistent with an employer’s duty of care under OSHA’s General Duty Clause to “furnish to each of its employees … a place of employment which [is] free from recognized hazards that [cause] or are likely to cause death or serious physical harm to its employees,” given that there are no specific COVID-19 OSHA standards.

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”:

An employer’s adherence to government guidance is a key factor that OSHA considers when assessing whether the employer has fulfilled its duty of care, or its “good faith” efforts to comply with the OSHA standards and guidance, and therefore is an effective step that employers can take to ensure compliance.’

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:

After all, “courts will not lightly presume an entire industry negligent.” Thus, it is advisable to be aware of the measures similarly situated businesses have adopted to mitigate the spread and risks associated with COVID-19 in considering the reasonableness of measures for your business.

What You Can Do To Mitigate Risk

  1. Implement a COVID-19 reopening plan that follows federal, state, and local government rules and guidelines as well as those that have been issued by prominent trade associations in your industry.
  2. If one does not exists, consider the appointment of a lead manager responsible for environmental, health, and safety compliance.
  3. Monitor and enforce your compliance practices on a regular basis – it is not enough to have a plan.
  4. Log activity and account for your compliance status – this can provide strong supporting evidence of your “duty of care”

How TrustPlace Can Help

  • TrustPlace provides industry starter kits to help you develop and implement a COVID-19 reopening plan that includes government and trade association guidelines.
  • TrustPlace software manages your compliance activities on regular intervals so you ensure that they get done.​
  • TrustPlace provides an organized electronic record of your compliance activities to provide evidence of “duty of care”.​
  • Sign up for TrustPlace today to help you manage your compliance efforts.
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