Here are keys to the legal risks of reopening a business during COVID-19
On Monday, California Gov. Gavin Newsom stated that some of the state’s retail businesses could begin operating with modifications by the end of this week. This is welcome news and a relief for business owners, employees, and customers across the state. In Merced, the governor’s order follows the requests of city and county leaders who have asked for the return of more economic activity.
But what risks do businesses face as they prepare to open their doors again to customers and employees? While the list of potential legal liability is extensive, the most pressing issue facing most businesses is this: How does a business operate safely to avoid the potential liability from employees or customers getting sick with COVID-19?
Legal principles
Answering this question requires an understanding of relevant legal principles. Broadly speaking, each person has a general duty to exercise reasonable care for the safety of others. In other words, a person or business may be held liable if their careless conduct injures another person.
The extent of this obligation largely depends on the “foreseeability” of the potential harm to others. When the type of harm is sufficiently likely, the business has an obligation to take steps to avoid the injury. The business must act as a “reasonably careful person” would in the same situation. These imprecise legal terms — foreseeable and reasonable — allow for flexibility in a wide variety of situations, but don’t necessarily provide clarity.
A recent court case can provide some guidance on foreseeability. In Kesner v. Superior Court, the California Supreme Court heard two related cases of secondary exposure to asbestos. In both of the related cases, the plaintiffs were family members (a wife and a nephew) of men who had worked in occupations where they were exposed to asbestos. Both the wife and nephew of these men later developed mesothelioma — a cancer closely associated with asbestos exposure. These plaintiffs had developed the cancer by having close contact with the men’s asbestos-covered clothing.
The California Supreme Court decided that employers have an obligation to take reasonable steps to prevent the transmission of asbestos from the worksite to the employees’ household. The Supreme Court stated, “it was foreseeable that people who work with or around asbestos may carry asbestos fibers home with them and expose members of their household.”
The parallel between asbestos and COVID-19 is easily seen. It has been well documented how COVID-19 is easily transmitted, even by people who show no symptoms. This public knowledge makes the risks of contracting COVID-19 foreseeable and, therefore, obligates each business to act as a reasonably careful person would in the same situation.
Common solutions
So, what types of conduct satisfy the “reasonably careful person” standard? While it is impossible to imagine all the actions a business could take to protect itself, some broad categories stand out.
Warn your employees and customers: The first thing a business can do is to give warnings to both employees and customers regarding the dangers of operating the business in the context of COVID-19. One of the easiest ways to risk liability as a business is to fail to give warnings of dangerous conditions. Accurate and timely warnings put the employee or customer on notice and allow that person to govern their actions accordingly.
Much like warnings posted at businesses for lead paint, asbestos, or even just hand washing, businesses should post a warning for employees and customers about the risks of COVID-19 in relation to operating the business. Placement and readability of the warnings are important to make the notices meaningful and effective. If the warning is hard to find or hard to read, it serves no purpose.
Set and enforce safety procedures: The second category is to set and enforce safety routines. Broadly speaking, each business has a responsibility to inspect the business premises and ensure that they are safe for the purposes intended. This is accomplished in a repeated cycle of inspection and repair.
For COVID-19, inspection and repair will depend on the nature of the business. For some, this will mean creating physical barriers to prevent transmission between employees and customers, making sure those barriers are working properly, and cleaning them regularly. For others, it may involve enforcing the use of masks by employees and customers. In more difficult situations, it may involve regularly monitoring employees for symptoms. Again, the proper response depends on the nature of the business.
Whatever circumstances dictate, the key is to implement and enforce policies and procedures designed to protect employees and customers. If an employee or customer is not following protocols, the business needs to take enforcement measures. An unenforced policy is the same as having no policy at all.
Stay up to date on the situation: Finally, each business needs to stay current with the COVID-19 situation. Our understanding of this disease is constantly evolving and may change dramatically over time — as happened with the use of masks in public. If a business operates based on outdated information, that business is likely to be liable to customers or employees for not taking proper precautions.
During this time, trade or industry associations will be especially helpful in identifying best practices for each individual business. Those industry standards will become the measure by which each business is judged in its response to COVID-19. Every business should stay up to date on best practices in its industry to protect against COVID-19.
Starting to reopen
The governor’s orders on opening up businesses are just the beginning of the story. Each business must respond to the current situation by taking those steps needed to protect its employees and customers. This will not only protect the business from potential liability, but will give confidence to consumers that better times are ahead — a sentiment we all want moving forward.