COVID-19 – FROM LEGAL LIABILITY TO REPUTATIONAL DAMAGE

What a nightmare…. you find out your best customer has contracted COVID-19.?Not just any costumer, but one who frequents your restaurant regularly.?It is a busy eatery in a a posh district.?Then you find out two more customers have also contracted the VIRUS.?Was the virus spread to others, whether staff or customer??Did you do enough to protect those who were at your restaurant??And…..will you be liable for any resultant damages or injuries to your customers??This applies to all commercial businesses be it a food store, hardware store, or children’s clothing store, just to name a few.

The Ontario Government did recognize concerns with the rapid spread of COVID-19 and as a result on November 20,2020 a new Act received Royal Assent.?Bill 218 - Supporting Ontario's Recovery Act (the Act) arose out of feedback from Ontarians. In a news release, Attorney General Doug Downey said "After listening to the concerns of Ontarians, we want to ensure people can seek redress against gross negligence, intentional misconduct and bad actors who fail to make an honest effort to follow COVID-19 guidance and laws."??The Act provides at section 2(1) that:

No cause of action arises against any person as a direct or indirect result of an individual being or potentially being infected with or exposed to coronavirus (COVID-19) on or after March 17, 2020, as a direct or indirect result of an act or omission of the person if,

a)?at the relevant time, the person acted or made a good faith effort to act in accordance with,

i)?public health guidance relating to coronavirus (COVID-19) that applied to the person, and ii)?any federal, provincial or municipal law relating to coronavirus (COVID-19) that applied to the person; and

b)?the act or omission of the person does not constitute gross negligence.

These protections also apply with respect to a person who is vicariously liable for the acts or omissions of another person, if the other person's liability is negated in relation to any such act or omission under subsection 2(1).?These protections do not apply with respect to acts or omissions of any person that,

a)?occurred while a law required the person's operations to close, in whole or in part; and

b)?relate to an aspect of the person's operations that was required to close under the law.

The protection provided under the Act is also specifically noted not to limit any defence or immunity that already exists at law or at common law.

Basically, the purpose of the Act is to offer liability protection (protection from lawsuits) to workers (individuals), businesses and organizations (including volunteers) that make "honest" and "good faith" efforts to comply with and follow public health guidelines and laws relating to COVID-19. The right to sue those that willfully or with "gross negligence" endanger others will remain.

Going back to my opening paragraph, how do you think the restaurant owner will make out? Aside from being concerned about the customers infected with the virus, he had a concern of the reputation of the business and the adverse affect or stigma of being a possible breeding ground of the virus.?To help the owner have a piece of mind and be able to answer employees and customers, the following should have been in place:

1.???????????Create A Plan - As coronavirus spreads, more businesses are putting safeguards in place to protect their companies and employees. A key precaution many business owners are taking includes creating or updating an emergency preparedness plan. An emergency plan not only outlines what steps your company plans on taking if an outbreak impacts your business. It also lays out what measures you are taking to protect your employees and business before disaster strikes.

2.???????????Inform Employees About Updates - No one likes being left out of the loop, especially when something like the coronavirus strikes. When it comes to protecting your business, you must, must, must communicate with your staff and keep them up to date. To keep your business safe during the virus’s outbreak, you must do your research. Check the Public Health Agency of Canada’s website every day for more information about the outbreak. And, don’t forget to check your local news for details about the spread and regulations pertaining to coronavirus (e.g., bans on mass gatherings). After you do your homework, relay that information to supervisors/employees as soon as possible. Keep them up to speed where the business stands.

3.???????????Re-evaluate Your Cleaning Procedures - This next suggestion is a little obvious, but it cannot go unstated. You must sanitize, sanitize, and sanitize your business during this battle with Covid-19.?So, how often is your business being cleaned? Weekly? Daily? Or hardly ever??Whatever your answer is, now is the time to step up how frequently you clean and sanitize your business.?Think about how you can improve your cleaning procedures to protect your business. To ensure your business can meet the clean test, consider doing some (or all) of the following:

• Ramp up how often your business is cleaned/sanitized/disinfected;
• Stock up the workplace with coronavirus fighting soap, disinfectants, and hand sanitizer;
• Disinfect employee desks and workspaces daily;
• Request that sick employees do not come into the office;
• Encourage employees to wash their hands frequently;
• Keep a record of your cleaning schedule and cleaning that has been completed!

4.???????????Follow all government orders - including shutdowns, capacity restrictions, social distancing and use of proper PPEs.

Keeping your business/workplace as spotless as possible and following the points noted above will give employees (as well as customers) some peace of mind knowing that they are in a safer environment. Not to mention, they will appreciate your extra effort to ensure that they stay healthy.?

Having said all the above, another especially important point is the question that could adversely protect both you and your business: Am I liable? Taking all precautions noted above and keeping an up-to-date record of all cleaning and sanitation carried out by your business will likely demonstrate to others, including a court, that you have taken reasonable steps to protect not only your customers but also your employees.?Also, under the circumstances It would be difficult to prove Gross Negligence and help defend you from legal liability.?So….it looks like you may not be liable!?And….your customers will continue to return and support your business.?

For information on how the team at The TPH Group can help visit: https://thetphgroup.com/disinfection