As shutdown orders expire and businesses reopen, questions arise on the possible liabilities created and the ability to mitigate them. Standards are emerging; some will be second-guessed. Previous modes of operation may continue or be rapidly changed. Trust and loyalty of customers and employees will soon be tested. Rules and recommendations will vary widely based on the nature of the business, its workspace footprints, exposure to the public and availability of necessary resources. What can be offered are not stringent guidelines, but a process for each business to determine on its own the preventative measures and practices to be pursued. In some cases, those measures and practices may depend on a sustained source of resources like adequate cleaning supplies and personal protective equipment.
Standard of Care. The process starts with trying to determine the standard of care for the facilities and operations. In general, a business may be liable for physical harm caused to its patrons if the business: (i) knows of, or by exercising reasonable care would discover, a dangerous condition present in the business premises, and should realize that it involves an unreasonable risk of harm to those patrons; (ii) should expect that the patrons will not discover or realize the danger, or fail to protect themselves against it; and (iii) fails to exercise reasonable care to protect its patrons against the danger. With COVID-19 likely to be considered a known and obvious danger, the required care to protect patrons and employees remains uncertain. Laws, regulations, rules and standards will continue to emerge, but for now a few sources can be references:
Preplanning. Prior to reopening, the business needs to assess the possible hazards in its workplace and plan and implement recognized required facility investigations and changes. For rented facilities, this entails coordination with the landlord and possibly adjacent facilities. Inspecting and flushing mechanical, water and other building systems may be required depending on results of investigation. Evaluations should be made of points of access and accountability for those entering the business premises. Special consideration needs to be given to reception areas and open space seating and whether partitions or screens may be appropriate. Consider what new policies may be needed to implement changes and draft them prior to reopening, and consider how to communicate that plan to customers, vendors, employees and visitors.
Cleaning. Prior cleaning practices need to be evaluated with particular attention to addressing contact surfaces in heavy-use and public-use areas, such as entrance and reception areas, conference rooms, restrooms, elevators, and drink and kitchen facilities. Changes in furniture and practices may be required in order for cleaning to be comprehensive and effective. Food service or consumption on business premises might need to be restricted or modified. Special treatment for fabric furniture may need to be considered and objects exchanged frequently by hand, such as tickets, name tags and cash, may need to be eliminated. Specific rules may be required for employees and the public to clean certain areas or equipment after use. One might consider the new CDC guidance for cleaning and disinfecting and posting of signs to that effect.
Employee Practices. Change should be considered in employee routines and practices to minimize unnecessary contact with other employees and the public. Work from home may be a viable alternative, but may require updated policies. Staggered hours could be implemented to reduce density in workspaces and provide safer and less-congested use of public transportation. Shared work spaces might not be permitted where practicable, and breakrooms or other areas where employees might congregate may need to be closed or have access limited. Protective masks and gloves might be provided, with appropriate training, and required to be worn within and outside facilities as appropriate. Strict rules following CDC guidelines for staying home when ill could be implemented with daily self-testing or employer testing or self-certification on entry to the business premises, in accordance with privacy laws. Flexible leave policies may need to be reconsidered accordingly.
Controlling and Restricting Non-Employee Access. For facilities open to the public or non-employee invitees, consideration needs to be given to the level of control and restriction to the business workspace. Depending on the exposure likelihood and consequences, temperature screening or health and travel questionnaires and certification of the absence of COVID-19 risk factors may be necessary. Density control in public space may be advised, as well as restricted access to non-public space. Protective masks, hand washing and sanitizing and adherence to CDC guidelines may be required. Dressing and changing areas may need to be closed.
Personal Protection. Adequate hand-washing stations and sanitizers will need to be made available to employees and invitees with appropriate informative signage and monitored for their use under CDC guidelines. Employees may need to be provided supplies for cleaning their individual work spaces, and those employees involved in shipping and receiving will need to have sufficient and appropriate supplies to sanitize packages as received.
Social Distancing. As it is now being projected that social distancing will continue for some time, businesses will need to focus on how that guideline can be accomplished in the workspace. Foot traffic may need to be regulated, with appropriate signage, to avoid close passage in corridor areas. Protective shields or panels may be recommended for adequate separation, and shared spaces such as conference rooms may need to be limited to fewer individuals, taking into account the square footage required for adequate distancing.
Response Plan. A response plan will need to be developed to provide reasonably possible and appropriate notice to potential contacts if an employee or invitee, or household member of either, is diagnosed with the virus. On-site access of the employee would need to be prohibited or restricted under the CDC and public health guidelines. Notifications to third parties in contact with the employee, or to employees in contact with the invitee, would need to be provided under established protocols and public health guidelines. Generally, any health-related and personal information should be kept confidential, and the name of the individual should not be disclosed except on a need-to-know basis to protect the health of the workforce and any affected invitees.
Claim Defense. The effective defense against future claims of virus exposure may be supported by the records maintained by the business on its employees and visitors. If a claimant is not reflected on a visitor list, claimed exposure on the business site could be questioned. Questionnaires concerning the absence of COVID-19 factors used to restrict access may also provide an additional defense to claims of exposure to other invitees. Registration or questionnaires required for access by the general public may not be possible or practiced so that other means, such as maintaining credit card receipts for extended periods might need to be considered.
Written Waivers and Releases. If the business currently utilizes liability waivers, releases or other forms of exculpation provisions in customer agreements, and faces potential future claims for novel coronavirus exposure, it should review these provisions with an eye toward strengthening them by specifically referencing such claims. Legal requirements for enforceability of such provisions vary state-by-state, making drafting by counsel a good idea. If the business does not currently utilize liability waivers, but could face claims that a customer contracted COVID-19 while on their premises or while an employee performed services at the customer’s premises, it should consider whether to begin using them.
Avoiding Misrepresentation Claims. One can expect plaintiffs’ attorneys to look for opportunities to bring claims (including consumer class actions) based on a company’s alleged misrepresentation or concealment regarding COVID-19 risk. All states have consumer protection statutes that prevent companies from making false or misleading statements about their products or services, some of which provide for statutory damages even if a consumer is not injured. Companies need to resist the temptation to “over promise” in their marketing when it comes to coronavirus safety, such as a retailer claiming that their stores are “coronavirus safe.” Misleading statements can also result in false advertising claims, either from government regulators or private plaintiffs.
For Providers of PPE or Other Pandemic Products, Understand Coverage of the PREP Act. Pursuant to the Public Readiness and Emergency Preparedness Act (“PREP Act”), the Secretary of HHS has issued a declaration that provides certain immunity from tort liability claims for “Covered Persons” who manufacture, develop, test, prescribe, distribute or dispense countermeasures for COVID-19. While the full scope of protection under the PREP Act is subject to interpretation, it would include a drug, device or biological product manufactured, used, designed, developed, modified, licensed or procured to diagnose, mitigate, prevent, treat or cure COVID-19 or limit the harm COVID-19 or the coronavirus might otherwise cause. Companies involved in the manufacture or distribution of PPE, drugs or devices intended as countermeasures to COVID-19, or their components, are likely covered by the PREP Act and should understand the contours of their protection.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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