Okay, You Can Re-Open. But What If Someone Gets the Virus?

As my home state of Georgia begins the process of re-opening its economy, business owners must recognize that, at least currently, the obligations and expectations for safety at their establishments have reached a new level. Whereas, in the past, the concern about “premises liability” has been limited to icy walkways, signage for mopped floors or enhancing security to prevent crimes, that liability now includes OSHA level hygiene, maintaining safe distancing and offering personal protective equipment. 

The act of inviting employees back to their workplace and welcoming customers back to stores and restaurants are awkwardly being balanced against the concern that, if you don’t follow the new safety guidelines mandated by both state and federal law, someone is going to get sick. If it is an employee, your business risks a worker’s compensation claim. If it is a customer or client, your business risks a personal injury lawsuit or worse, a wrongful death action, should the virus claim another helpless victim.

At the present time, there are no laws that create immunity for businesses that choose to re-open. Although the topic has been raised in both state legislatures and in Congress, the only movement towards such a blanket immunity from liability for injury or death has been in support of healthcare workers, doctors and hospital personnel who are managing this crisis on the front lines. So far there has been silence about how businesses that stayed open or now choose to re-open while there remains no defined treatment or vaccine will manage the risk of claims should employees or customers get infected. Of course, there remains a clear school of thought as to the difficulty that would exist in proving that a specific business was the location or proximate cause of an isolated infection. That defense may prove more challenging if a significant number of customers, clients, employees or others all become infected at the same time based on their associated contact with that business.

The risk of infection is only part of the challenge. These new rules inherently involve potential violations of HIPPA laws if employees and customers are required to be tested before they are allowed to enter a business. Likewise, potential violations of the ADA may arise when access is restricted due to that employee’s or customer’s medical condition. These issues as to privacy and access also create opportunities for legal challenge and liability.

It will be interesting to see how insurance companies will respond when their insureds are pursued for alleged negligence for the failure to follow new safety rules being issued by the CDC, OSHA and individual states. Will insurance companies decline coverage asserting that their insureds may have violated the law by failing to follow certain guidelines? And how will a jury respond to a business being sued for allegedly putting profit before employee or customer safety?

Any legislation limiting liability for businesses re-entering the marketplace would need to offer safe harbor protections for businesses that show good faith compliance in their operations, especially where guidelines may be unclear, inconsistent or even inapplicable to the type of business involved. Ultimately, any effort to create such legislative protections would require a massive state or federal initiative - not a topic that is on the forefront of those otherwise concerned with just keeping the economy afloat.

So, here we are, at the beginning of the new “wild west” of COVID-19 liability laws. As businesses begin to re-open, workers return from the unemployment lines and customers return to their favorite stores, operators will have to deal not only with the economic challenges of managing their business in the midst of an ongoing pandemic but doing so faced with the heavy burden of laws governing safety, privacy, equal access and hygiene and the rising risks of liability for non-compliance.

For thirty years, Scott Zucker has acted as outside legal counsel to a variety of privately held and publicly traded businesses involved in multiple industries. His legal services have ranged from employment, real estate, construction and corporate consulting to representation of companies in the litigation of their financial and business disputes. Scott’s goal is to utilize his legal and business experience to foster the use of Alternative Dispute Resolution to help parties reach resolutions without the time, effort and cost of court litigation. Scott can be reached at [email protected] or www.EpicADR.com