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.”
What Guidelines Apply?
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.