The Legal Liability Landscape of Re-Opening Businesses

Most, if not all, areas of the United States have now entered the process of opening back up for business after having reckoned with many weeks of governmentally-mandated closures and “safer-at-home” or “stay-at-home” declarations. Along with this re-opening, a variety of liability concerns related to the Covid-19 pandemic necessarily will be confronted by these re-opening businesses. Business owners and employers will face an unprecedented exposure to a “novel” landscape of legal liability arising from their engagement with both patrons and employees. Clients and customers will worry about being exposed to the potentially fatal virus when frequenting a re-opened business and employees who return to work will worry about being exposed to the virus in their workplace. These re-opening business owners are right to fear these claims from their employees and patrons. Why, you ask?

First, while employees may not be able to sue their employers for an injury or debilitating illness sustained at the workplace, by statute most employees are covered under an employer’s workers’ compensation insurance policy which provides compensation and medical benefits to workers who are injured or become ill while at work. Even though these claims may be potentially covered by insurance, workers’ compensation claims can prove very costly for employers in the form of substantially higher premiums, continued payment of wages during the recovery period and a slew of other direct and indirect costs. Moreover, an employee is not required to prove fault on the part of an employer to be eligible for workers’ compensation benefits, only that injury or illness occurred while on the job. And while one might think that getting a workers’ compensation claim approved based on contracting Covid-19 would prove to be a daunting task, the failure of an employer to rigorously implement and adhere to the governmental guidance could far more easily subject a re-opening business to such workers’ compensation liability.

The Occupational Safety and Health Administration (OSHA), which requires employers to establish a workplace that’s “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees, has issued guidance directing re-opening businesses to follow the labyrinth of complex guidelines promulgated by the Centers for Disease Control and Prevention (CDC) which are applicable to workers in office buildings who are at risk for exposure to the virus that causes Covid-19, recognizing that “[o]ffice building employers, building owners and managers, and building operations specialists can take steps to create a safe and healthy workplace and protect workers and clients.” These extraordinary measures, if properly followed, should at the very least include EACH of the following undertakings:

• Create a COVID-19 workplace health and safety plan, which should incorporate ensuring that ventilation systems are properly operating, increasing the circulation of outdoor air as much as possible by opening windows and doors, using fans and other methods.
• Identify where and how workers might be exposed to COVID-19 at work, which should incorporate identifying work and common areas where employees could have close contact (within 6 feet) with others, modifying work processes and work requirements for employees to prevent transmission of COVID-19, developing or engineering a hierarchy of hazard controls to reduce transmission among workers, such as altering seating, adjusting furniture, installing shields and physical barriers where possible to either maintain social distancing or counteract the inability to do so, using signs, tape marks or other visual cues such as decals or colored tape on the floor, placed 6 feet apart, to encourage social distancing and replacing high-touch communal items, such as coffee pots, water coolers, and bulk snacks, with alternatives such as pre-packaged, single-serving items.
• Take steps to improve ventilation in the building, which should incorporate the re-engineering of HVAC operations, using natural ventilation to increase outdoor air dilution of indoor air when environmental conditions and building requirements allow, improving central air filtration without diminishing design airflow, running ventilation systems continuously even during unoccupied times to maximize dilution ventilation, repositioning supply and exhaust air diffusers and/or dampers and adjusting zone supply and exhaust flow rates to establish measurable pressure differentials, introducing high-efficiency particulate air (HEPA) fan/filtration systems to help enhance air cleaning (especially in higher risk areas), ensuring exhaust fans in restroom facilities are functional and operating at full capacity when the building is occupied and using ultraviolet germicidal irradiation (UVGI) as a supplement to help inactivate the virus.
• Change the way people work, which should incorporate encouraging employees who have symptoms of COVID-19 or who have a sick family member at home with COVID-19 to both notify their supervisor and stay home, having employees who appear to have symptoms upon arrival at work or who become sick during the day immediately separated from others, providing them a face mask if they are not using one and sent home with instructions and guidance on how to follow-up with their health care professional, ensuring that sick employees do not return to work until the criteria to discontinue home isolation are met, in consultation with their healthcare provider, performing enhanced cleaning and disinfection after anyone suspected or confirmed to have COVID-19 has been in the workplace, conducting daily in-person or virtual health checks (e.g., symptoms and/or temperature screening) of employees before they enter the work site, developing and implementing policies which prevent employees from congregating in groups while waiting for screening, and maintain a 6-foot separation between employees, staggering shifts, start times and break times as feasible to reduce the density of employees in common areas such as screening areas and break rooms and posting signs in parking areas and entrances that ask guests and visitors to wear cloth face coverings and, if possible, to not enter the building if they are sick and to stay 6 feet away from employees.
• Follow the Guidance for Cleaning and Disinfecting to reduce the risk of people’s exposure to the virus that causes COVID-19 on surfaces, which should incorporate routinely cleaning and disinfecting all frequently touched surfaces in the workplace, such as workstations, keyboards, telephones, handrails, printer/copiers, drinking fountains and doorknobs, ensuring that visibly soiled (dirty) surfaces are first cleaned with a detergent or soap and water before disinfecting them, providing employees with disposable wipes and other cleaning materials so that they can properly wipe down frequently touched surfaces before each use, providing employees adequate time to wash their hands and access to soap, clean water and single use paper towels and making hand sanitizer with at least 60% alcohol readily available.
• Prohibit handshaking, hugs and fist bumps, limiting the use and occupancy of elevators to maintain social distancing of at least 6 feet, encouraging the use of outdoor seating areas and social distancing for any small group activities such as lunches, breaks and meetings, offering employees who commute to work using public transportation or ride sharing incentives to use forms of transportation that minimize close contact with others (e.g., biking, walking, driving or riding by car either alone or with household members) and/or allowing them to shift their hours so they can commute during less busy times, placing signs and reminders at entrances and in strategic places providing instruction on hand hygiene, COVID-19 symptoms and cough and sneeze etiquette (including signs for non-English speakers), using no-touch waste receptacles, reminding employees to avoid touching their eyes, nose and mouth and, last but certainly not least, ensuring that ALL employees on premises wear a cloth face covering to cover their nose and mouth in all areas of the business (unless an employee has a discernible physical limitation, such as a breathing difficulty, which would prevent that employee from being able to wear a mask, appreciating that masks are understandably uncomfortable but that discomfort alone is not an adequate enough reason to preclude an employee from wearing a mask).

An employer’s failure to rigorously implement and adhere to this rather specific set of guidelines following re-opening would be an open invitation to any employee who contracts Covid-19 upon returning to work to file a workers’ compensation claim against their employer, and any nonchalance by an employer in its approach to this vast array of guidelines could be easily exploited by an employee who tests positive for Covid-19 after returning to work upon a businesses’ re-opening. Perhaps the most readily observable and notable failure on the part of an employer potentially giving rise to liability would be as to the darning of masks or face coverings, since all it would require is a snapshot or two to establish non-compliance and it truly is a technically bereft criterion to implement as compared to so many of the others. In other words, an employer’s “bang for the buck” in reducing its legal exposure by requiring that masks be worn and faces be covered is quite high. Conversely, the liability exposure would likely be quite high for any employer who fails to ensure that this easily tasked guideline is routinely followed.

Additionally, beyond the liability to a business from its employees, patrons who test positive for Covid-19 after visiting a business may be able to pursue a claim for monetary damages against a re-opening business by filing of a personal injury lawsuit. If a patron feels that the business was negligent by failing to adequately implement and adhere to the foregoing guidelines, and thus having known about the potential risk of harm to them presented by Covid-19 failed to take reasonable measures to prevent that harm from occurring to them, such a lawsuit may be well-founded and meritorious. While it may be true that there is some assumption of the risk associated with venturing out during this pandemic, a place of business cannot ignore following the governmental guidance published by the CDC with impunity and expect to remain immune from liability to its patrons on that basis. And because there is some issue at the present time as to whether or not viruses are excluded from coverage under both casualty and general liability insurance policies, a re-opening business could very well find itself in the position of having to hire and pay its own lawyer and to provide for its own defense in the event such a lawsuit is brought before the courts start to weigh in on the multitude of coverage claims which will invariably arise from the Covid-19 pandemic.

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