COVID-19 has been the ongoing theme of 2020. The global pandemic has radically changed the landscape of work, education, healthcare, and fundamental human interaction. Words like “masks,” “social distancing,” and “quarantine” have become commonplace in our lexicon. Another unintended consequence is that a number of industries have been crippled, with no recovery in sight.
For those businesses that have been fortunate enough to survive, they must grapple with how to keep their customers and employees safe, while avoiding potential liability related to COVID-19 exposure. COVID-19 liability is an emerging and highly unsettled area of law, with business owners petitioning lawmakers for statutory protections limiting the potential for lawsuits. The most recent proposals would require COVID-19 related lawsuits to be brought in federal courts and under very limited circumstances.
However, there are some common-sense steps every business can take to lower its potential liability related to COVID-19 related lawsuits until this morass is sorted out. The following are five tips for doing so:
TIP #1: FOLLOW THE REQUIREMENTS OF YOUR STATE/CITY/LOCAL MUNICIPALITY
Now, most municipalities have adopted a mask requirement, social distancing rules, and occupancy limitations in an effort to flatten the curve. Your city’s requirement may be more restrictive than your state’s mandate, so make sure you are aware of both and are in compliance. An initial question that must be answered is whether your business is legally allowed to be open. The next question is “what are the restrictions that my business may operate under?” Different industries may have different restrictions, as well as best practices. Be a sponge, your business will thank you.
TIP #2: ASSIGN SOMEONE TO IMPLEMENT SAFETY AND HEALTH PROTOCOLS
The CDC and OSHA have promulgated a number of safety and health protocols that are geared towards limiting the spread of COVID-19. These are updated and change regularly. So you may want to designate someone, preferably from Human Resources, to stay abreast of this shifting and evolving landscape as medical and public health professionals learn more about this virus.
TIP #3: REVISIT YOUR INSURANCE COVERAGE AND TALK TO YOUR INSURANCE COMPANY
Most business owners have a Commercial General Liability policy. This is a good time to refresh your memory in regard to the contents of your policy. Make sure you know the coverages, the amounts, what is covered, and what is exempt. Equally important is knowing when a claim/occurrence must be made in order to preserve your coverage.
Your insurance company may inform you of new coverages that are specifically related to COVID-19 and other pandemic claims, as well as offering proactive advice or training.
TIP #4: COMMUNICATE
In this climate, trust is in short supply. So in order to calm skittish employees and customers, it is important to not only message but has the right messaging. And like most communication, there is a verbal and non-verbal component.
From a verbal standpoint, talk to customers and employees about the actions you are taking and why you are taking the actions required to keep everyone safe. You may post signs asking customers to wear face masks. You may institute new cleaning and sanitation protocols. You may need to make changes to your sick day policy and have a policy in place for employees to report fever/illness, as well as a remote/work from home policy.
You may encourage educate employees to recognize symptoms of COVID-19, as well as where to get tested. Also, get input from employees as to what would make them feel safe and how policies should be adjusted. Most importantly, you may want to have a plan in the event of another business shutdown.
Nonverbally, make sure your business looks clean and PPE is visible and in place, where appropriate. In the case of a restaurant, you may but shields up around the register, have hand sanitizer available for your customers and minimize employee contact with food by using disposable gloves and tongs.
TIP #5: CONSIDER A WAIVER/RELEASE AS PART OF YOUR RISK MITIGATION STRATEGY
With this tip, the precursor is that you have a comprehensive risk mitigation strategy. If you do not, you can reach out to your trade associations, insurance company, attorney, human resources consultant, or research via the internet to develop your own. As part of that, you can have employees sign a waiver/release upon returning to work stating that they will not sue the company should they contract or be exposed to COVID-19.
CONCLUSION
This year has been a trying time for all of us. And the COVID-19 pandemic has not made it any easier. However, with a little caution, preparation, and common sense, business owners can limit their liability until things return to some semblance of normal.