Depending on where they are located, offices are slowly and cautiously welcoming back employees after the shutdown. Likewise for retail stores and restaurants.
In the vast majority of cases, these openings have been accompanied by stringent measures to protect the health and safety of workers and visitors. But is that enough to protect a company from liability if someone catches COVID-19 within their premise?
In fact, it is only half of the battle, Saul Ewing Arnstein & Lehr attorney Louis P. Archambault tells GlobeSt.com. Companies not only have to follow the necessary guidelines to safeguard their buildings from COVID-19, but they also have to ensure compliance with those measures, he says.
At the same time, visitors to these establishments—shoppers in a grocery store for example—must do their part to act responsibly, Archambault continues. That means wearing masks, practicing social distances, and adhering to local guidelines as well. “As human beings, we have a responsibility to each other,” he says. For the less altruistically inclined, he warns that individuals not taking these steps could lose out on potential claims should they do get sick.
It has been argued that in a lawsuit it would have to be proven that a person caught COVID-19 in a particular building, on a particular day etc. Archambault argues this is an easier case to make than many might expect. Between our mobile devices, private security cameras, and other tracking and tracing methods, there are enough records available to determine who was within six feet of an infected person, he says.
“Businesses absolutely need to take this seriously. But let’s say that despite their best efforts, someone catches COVID-19 at their building. If they have been following the guidelines and are actively enforcing them, they can show they have minimized the risk and potential exposure to people. Then it becomes much harder to prove that a duty was breached.”
In a way, Archambault says, much of this is basically premises liability 101, only now companies have new guidelines to follow. It is important to follow the right ones, though, starting with those that have been issued by the CDC. There are also county-specific guidelines for location and business type that must be followed as well. In addition, OSHA has released guidelines for workers that must be adhered to. Finally, there have been a slew of guidelines released by industry associations, brokers and leading companies. The latter don’t necessarily have to be followed but it would be good to be aware of them and comply when possible, Archambault says.
“I would recommend checking with trade organizations. They are working to take all of those general guidelines and convey them to members and that can make it easier from an enforcement perspective.”
Also, he adds, it can help a business not feel so alone if trade association is helping.
Enforcing the Guidelines
In many retail establishments, the sensitive task of asking a customer to wear a mask has been left to poorly-trained retail clerks. Another related development: while airlines have made it a requirement to wear a mask on a flight, they have reportedly told flight attendants they don’t have to enforce that rule.
These situations open a company to liability because they are not properly enforcing the safety measures they have put in place, Archambault says. “If a lawsuit comes, the first question will be, did you have guidelines? The second will be, did you enforce them?” he says.
Congress Talks About COVID-19 Liability
Congress has been debating whether to provide liability for businesses against COVID-19 claims. Essentially, it is something Republicans are pushing for, while most Democrats maintain it is not necessary and that such protections could lead businesses to take shortcuts with safety.
However this shakes out, Archambault suggests not assuming such a measure will pass. Counting on it is premature before the specifics are unveiled, he says.
Also, as the country begins to reopen, the opportunity for infection grows.
If that doesn’t convince you, Archambault has one final argument: “these potential risks may not be covered by current property insurance.”
SVN Bluestone & Hockley and sister company, Bluestone & Hockley Real Estate Services, has been operating remotely since the beginning of the pandemic. For information on how a local company has dealt with moving to remote operations, read this article.