Business and Legal Insights

After two months of stay-at-home orders and shutdowns due to the COVID-19 pandemic, businesses and policymakers have gradually begun to reopen the economy in phased increments. However, as the pandemic continues, businesses should focus not only on reopening plans, but also on the legal issues that they are at risk of encountering.

Proactive business owners can help to mitigate their risk of liability and exposure by anticipating potential legal issues and having a mitigation plan in place. First and foremost, any resumption of operations should closely adhere to federal, state and local government requirements, with special attention being paid to emerging scientific and policy developments, reopening timelines, and restrictions. Mere compliance with these orders - which primarily focus on enhanced cleaning recommendations and extensive social distancing - may not mitigate a business’ risk entirely, since the role to protect the health and well-being of customers through additional safety measures is now amplified. Therefore, it is critical that businesses carefully review the requirements applicable to their communities and create a mitigation plan in accordance with the same.

Responsible parties should be aware that reopening to our new pandemic-stricken world likely imposes some level of duty on businesses to take reasonable precautions, depending on the type of business and its particular relationship to its customers. For example, businesses with facilities and establishments open to the public, such as restaurants and retailers, must consider the well-established duties owed to business invitees on its property in light of the current circumstances and challenges presented by COVID-19, such as the duty to:

• Use reasonable care in maintaining the premises in as reasonably safe a condition as possible in light of the spread of COVID-19; and,
• To warn of the spread of COVID-19.

In that regard, a business should take measures to protect its customers from the spread of the virus, especially if the business becomes aware of known cases traced to its operations.

Tips to Avoid Potential Liability

In order to further protect the interests of your business, and most importantly, the health and safety of customers and employees, businesses should consider a number of preventative measures as a risk-mitigation strategy. What measures your business adopts will be based on your unique business area and whether the various precautions(s) are compatible with your business’ continued operations.  Some measures businesses and other public establishments have adopted include:

1. Closely monitoring and adhering to all applicable federal, state, and local guidelines.
2. Staying abreast of key developments in prevention strategies and periodically updating company policies to reflect current guidance.
3. The implementation of enhanced housekeeping practices consistent with guidance issued by the Centers for Disease Control and Prevention (CDC), the U.S. Environmental Protection Agency (EPA) and local agencies.
1. Social distancing, ensuring availability of sanitizer and handwashing stations, requiring or suggesting personal protective equipment, temperature checks, cleanliness and disinfecting protocols, etc.
4. Careful documentation of the reopening process, including:
1. The evolving state of information at periodic intervals;
2. The company’s corresponding safety measures to such information;
3. The implementation of safety protocols (indicate how, when, where and why such measures were implemented);
4. Documenting/reporting known or suspected cases of COVID-19; and,
5. Site contamination and the measures taken to address that contamination.
5. Creating a comprehensive strategy, which may utilize and/or communicate the following:
1. Restrictions and limitations to services or operations;
2. On-site signs and warnings;
3. Disclaimers;
4. The implementation of written waivers from customers acknowledging COVID-19 precautions and their assumption of risk; and,
5. Review of applicable insurance policies to determine whether COVID-19-related coverage is available. 
6. If necessary, shutting down operations if a known outbreak arises and reassessing the ability to adopt additional protective measures if possible.