Avoiding litigation: 5 things business owners should consider as they reopen

As we “flatten the curve” and begin to restart the economy, businesses ready to get back to work should be aware of potential exposure to COVID-19 lawsuits. Just as consumers are eager to return to their favorite restaurant, shop, or hair salon, so, too, will lawyers be looking to get back to court and possibly sue establishments at which individuals claim they contracted the coronavirus.

In Maryland, and most other states, a business owner has an affirmative duty to its customers to use ordinary care to protect them from injury caused by an unreasonable risk that the patron, using his or her own ordinary care, would not discover. Liability for breach of this duty may arise from the existence of an unsafe condition — here, the presence of the coronavirus on the premises or an infected employee.

Businesses that fail to take preventive measures — for example, not implementing or enforcing social distancing guidelines, not removing potentially exposed employees for a period of self-isolation, or failing to thoroughly and routinely sanitize their establishments — risk exposing their employees and customers to the pathogen, and themselves to litigation.

The typical claim would be one for negligence, in which the injured patron alleges that the establishment knew of the presence of the virus, did not implement adequate measures to eliminate it, and as a result the customer became ill.

As commercial restrictions ease, it is inevitable that exposures and infections will increase. The question is how to protect against being sued for a COVID-19 injury. Here are five measures business should consider as they reopen and try to restore normal operations:

  1. Comply with all guidelines and recommendations issued by federal, state, and local health officials. As these guidelines are subject to changes and updates, business owners should frequently review them and modify policies accordingly. Because knowledge and understanding of the virus is evolving, these guidelines may be viewed as best defining the standard of care required for keeping your business safe. Indeed, lawmakers in Congress are already discussing legislation that would provide businesses a safe harbor from liability if they complied with Centers for Disease Control and Prevention or possibly other guidelines — but there is no timetable for when (or even if) such laws would be enacted. Current guidelines from the CDC are posted at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. Information for Maryland businesses can be found at https://open.maryland.gov/backtobusiness/.
  1. Review the Occupational Safety and Health Administration’s COVID-19 resources and guidelines for providing a safe workplace. Although a legal action against a business by its injured or sick employee is governed by workers’ compensation laws (and is beyond the scope of this article), keeping employees safe and minimizing their potential exposure to coronavirus translates into keeping your customers safe, too, as the virus does not discriminate between patrons and staff. OSHA has posted workplace guidelines for numerous different types of businesses at https://www.osha.gov/SLTC/covid-19/.
  1. Reach out to local health departments for specific guidance if you become aware of a potential exposure or a confirmed infection. Indeed, a best practice is to consult with local health officials generally — even in the absence of a suspected or confirmed exposure — to seek advice or approval regarding a specific risk reduction plan.
  1. Carefully document the preventive measures taken. Not only does writing down all implemented safety measures help as daily “check list” to protect your business, but also this documentation, contemporaneously maintained as a business record, allows a business to affirmatively respond to, and negate, potential accusations that it failed to maintain a safe environment.
  1. Be transparent in any communications with health officials and the public. The last thing a business wants is to be perceived as hiding something. In the event of a confirmed infection on the premises where mitigation measures are then taken, better to disclose both the existence of the case and describe the safety response.

However, in such circumstance, it’s best to contact your local health department for advice and guidance on the scope of any public disclosures.

In the unfortunate event that one of your customers contracts COVID-19 and claims the exposure occurred at your place of business, it may be a long and costly process to defend the allegation. Although businesses that implement the above measures will have solid defenses, our legal system generally allows injured parties the opportunity to present their claims and have their day in court.

While reopening businesses and our economy is a welcome light at the end of the tunnel, COVID-19 litigation will almost surely surface in the months ahead. Businesses should proceed with care to implement best practices and limit risk.

Eric R. Harlan, a litigation partner at Shapiro Sher, can be reached at erh@shapirosher.com.


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