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Liabilities When Re-Opening: Steps to Minimizing the Risks
April 28, 2020


All information in this COVID-19 Response Resource issue is effective as of April 28, 2020.

Over the next several weeks, stay-at-home orders implemented by governmental entities in March and April will begin to be relaxed--or lifted altogether--and businesses and employers will be faced with questions about whether and how to resume “normal” operations. Businesses will be facing these questions in a world in which (1) coronavirus is still actively circulating in the population, and (2) there is no effective vaccine or treatment--at least in the foreseeable future. 

While states may begin to relax stay-at-home orders, allowing business activity to resume, businesses must consider potential tort liability associated with their business operations. Already lawsuits have been filed by employees and customers who claim they were exposed to coronavirus due to a business’s negligent conduct. In some states, workers’ compensation bars such claims by employees but in most states COVID-19 illness or death is not covered by workers compensation insurance.   

Courts have long imposed liability on individuals who have harmed others by transmitting communicable diseases. It is an established legal principle that a person who negligently exposes another to an infectious or contagious disease is potentially liable in damages. The list of cases in which parties have been found liable, typically for negligence for exposing another person to a contagious disease, is long, and it includes every conceivable scenario, including the exposure of employees and customers to contagious diseases at the workplace. 

What should companies and employers do to minimize their risks?  

  1. Companies and employers should prepare a plan that outlines how they will resume business when a stay-at-home order is lifted or how they are going to continue operations based on new safety guidelines. That plan should include policies and directions for the company and all its employees to follow applicable OSHA, CDC, local government or industry specific guidelines, including guidelines regarding sanitizing the workplace and store front. The Environmental Protection Agency has issued guidelines regarding approved cleaners for cleaning surfaces exposed to the coronavirus. 
  1. The plan should address what personal protective equipment (PPE) is going to be offered to employees and ways to enforce distancing recommendations between employees and other employees and customers. Many companies are installing shields between customers and employees when engaging in payment transactions. 
  1. Companies and employers should consider staggering shifts for workers and limiting the number of customers who may be at the business premises at any one time to minimize risk of exposure. 
  1. Companies should consider changing the physical layout of the workplace to increase the distance between employees or customers. Companies should also explore altering the way in which they provide goods or services to customers to minimize interactions between employees and customers. 
  1. Companies must be vigilant in addressing possible COVID-19 cases among employees or customers. Businesses that are open to the public should adopt clear and specific policies asking customers who are exhibiting any symptoms of sickness to remain home. Likewise, businesses should publicize clear and specific directives to employees about the importance of staying away from the workplace if they are exhibiting any possible symptoms of the disease. Employers should consider “contact tracing” of employees who have been exposed to COVID-19 at the workplace and encourage them to stay home, even if they are currently not exhibiting symptoms of the disease. 
  1. Companies should consider holding regular “safety huddles” with employees that include training employees regarding safety protocols, addressing adjustments to such protocols if necessary and reminding employees of the importance of adhering to distancing and PPE requirements implemented by the company. 
  1. Companies must keep detailed records of all implemented policies, training offered to employees and responses to COVID-19 exposure events.   

Ultimately, should litigation arise, businesses operating in the current environment will be judged by how they responded and what they did to meet the unique risks within their operations and at their places of work. If they operated on a “business as usual” mentality, a jury may later conclude that they failed to act reasonably to prevent the spread of coronavirus. Alternately, businesses that thoughtfully considered how their operations and policies could be modified to mitigate the risks of coronavirus will be able to argue that they acted reasonably under the circumstances, even if those actions were ultimately unable to prevent the spread of the disease.  

The Utah legislature recently passed a statute that shields companies from COVID-19 related claims, unless the company engages in “willful misconduct”, “reckless infliction of harm” or “intentional infliction of harm.”  While this statute provides a degree of protection for businesses and employers, prudent business leaders will take all necessary steps to eliminate risks to employees and customers.  Putting aside legal considerations, it is simply good business practice. 

For assistance to implement policies to safeguard your organization, contact Sean Monson by calling (801) 536-6714 or send an email to smonson@parsonsbehle.com or Brandon Mark by calling (801) 536-6958 or send an email to bmark@parsonsbehle.com