As states across the country begin to lift COVID-19 restrictions on businesses, many store and restaurant owners are trying to assess how they will operate with the risk of exposure still present in many communities.
While some states are creating guidelines for how businesses should operate during the pandemic, such as maximum capacity per square foot of space and what protective gear must be worn, businesses still worry about the potential liability when they allow customers, vendors, and employees back onto their premises.
Businesses in many states are now having to weigh their options: stay closed and face the economic hardship of the lost revenue or open and face possible liability in a lawsuit from someone who contracted the Coronavirus while on their property. While government officials are considering the idea of granting business owners immunity from personal injury claims relating to the Coronavirus, there may not be established legislation by the time businesses are given the opportunity to open their doors to the public.
What Kind of Liability Could a Business Face?
Typically, a business is expected to take responsibility for the damages that their product or property create, whether through product malfunction or improper maintenance.
For example, if a business did not have any experience making their product, and something went wrong, then a person injured by this product could have a strong case against the business. Similarly, for a restaurant, a personal injury claim could stem from food poisoning or a slipping accident caused by an unmarked wet floor.
“However, in the landscape set up by Coronavirus, there could be a shift in how premises liability cases are handled because businesses are having to flip their business models or open with the chance of infection.” explains attorney Jim Hurley of Cooper Hurley Injury Lawyers.
There are many companies that have switched the kinds of items they produce to meet the drastic shift in demand, such as those that have begun to make hand sanitizer and face masks. Additionally, there are businesses that want to open their doors despite the ever-present threat from COVID-19. This generates the possibility of businesses being liable in a product or premises liability claim that states that they were negligent in their protection of customers or employees.
Proposed Changes to Legislation
Senators are pushing for liability protections for businesses within the next Senate bill, some calling it a crucial step to protecting employers who aim to reopen soon. Others are seeing it as having unintended consequences of making conditions less safe for returning workers.
Organizations like the National Association of Manufacturers are asking Congress to limit lawsuits, whether state or federal, against essential manufacturers to instances where the manufacturer had actual knowledge that an employee would be exposed to the virus. There is similar sentiment within other industries who want to stop pandemic-related class action lawsuits against companies who acted during a time of scarcity or simply opened their doors when they were allowed to do so by state governments.
While there is increasing pressure for lawmakers to create legislation to protect business from these types of claims, companies may not find themselves with the leeway in personal injury cases by the time they open their doors.
What Can Businesses Do to Protect Themselves?
While there are many guidelines to follow that may differ from state to state, one thing is clear: document everything. Some employee claims related to COVID-19 will be covered by workers compensation laws. However, a business could still face possible liability for Coronavirus infection.
The typical progression of a personal injury claim relating to disease is that a person needs to prove where she was infected and if a company was negligent in causing or allowing the spread of the disease. Some states are looking to change the burden of proof so that businesses must prove a customer or employee was not infected on their premises. However, this change is contained in legislation in only a handful of states.
A great way to try and limit your liability is to be stringent about social distancing, disinfect surfaces, and wear personal protective gear. It is also going to be in your best interest to document anything related to customers and employees comings and goings.
When in doubt, it is safest to adhere as best as you can to your state’s guidelines on Coronavirus. If, for example, personal protective gear like masks are optional, your business may make the decision to supply masks to employees to ensure safety at all times. If you are worried that the products you are making, like hand sanitizer, may put you in hot water because your business typically makes hard liquor, you could consult an attorney to discuss how to label your products to protect against potential liabilities.
As stay-at-home orders are lifted and businesses are allowed to return to somewhat normal operations, it is important for business owners to think about the best way forward while avoiding potential liability. With many moving parts, it may be helpful for your business to pursue local legal advice to weigh your options in these uncertain times.