Protecting Your Business from Liability for COVID-19 Transmission
As businesses continue to evaluate current operations and how they will modify them as shelter-in-place orders are lifted and employees and customers return, it is important for each business to anticipate potential COVID-19 related claims. Businesses can and should take active steps to mitigate these claims and protect against potential liability. Organizations, including for-profits and nonprofits, should consider two distinct but equally important areas of inquiry.
First, time should be spent evaluating current insurance coverage for potential allegations of COVID-19 transmission at or because of the business. This will be a particular concern for those with waiting rooms or other areas where crowds of employees or customers may gather to work or wait for goods or services. Second, businesses must stay up-to-date on current CDC, federal, state, and local guidelines regarding distancing and cleaning to be sure that they are meeting or attempting to meet these guidelines.
Most businesses have premises liability insurance, workers’ compensation insurance, or some other coverage for an injury to a customer or employee on the business premises. We recommend that leaders review these policies now to be informed of the likelihood of coverage for a claim of COVID-19 transmission and to identify the appropriate reporting obligations. For example, if a business learns that an employee or customer had been on premises while potentially contagious with COVID-19, the reporting clock may begin to run well before a claim is ever received. Businesses that fail to understand their coverages and their obligations under their current policies may find themselves harboring a false sense of protection, as their failure to take steps to best ensure they maintain their coverage may put otherwise available coverage at risk.
Regardless of existing insurance coverage, businesses that are not staying abreast of and following current and ever-changing CDC, federal, state, and local government guidelines and recommendations run the risk of later being declared negligent for failing to properly protect customers or others from COVID-19 transmission. We recommend businesses establish a person or a team, depending on the nature and size of the business, to monitor these recommendations and focus on how best to modify operations to meet at least the spirit of the guidelines and recommendations.
In addition, we recommend that organizations keep detailed records to demonstrate when they learned of updated guidelines and recommendations, the business changes adopted in response, and the process for implementing these operational changes. You want people to maintain their confidence in your business, particularly when they see proactive steps being taken to make them safer.
These are extremely difficult times for many, and we are here to provide any assistance you need to maintain and protect your organization. We have been and will continue to advise clients on the proactive steps they can take to minimize risk and provide protection from liability. Please contact Steve Barham, Justin Furrow, or your relationship attorney with any questions or concerns regarding potential COVID-19 related claims by employees, customers, or vendors.
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The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings, and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. In some cases, the underlying legal information is changing quickly in light of the COVID-19 pandemic. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship. Please contact your legal counsel for advice regarding specific situations.