Businesses Should Take Every precaution To Set Up Tight Protocols To Protect Employees And Visitors In Order To Limit Exposure To Legal Action
By Judith Bachman
She began working at her grandfather’s hardware store when she was a teenager. By the time the COVID-19 crisis hit, she had grown the business to three retail locations and a crew of nearly one hundred commercial contractors and home remodelers.
Now she is worried that when she reopens her stores, she might be liable if a customer claims that they were infected with the virus on her premises. She is concerned that one of her employees might sue if they contract the virus at work. She is worried that a tenant might claim that her crew spread the virus in their building.
Should a business owner be worried? Will businesses be liable for virus claims? What can businesses do to breathe more easily?
While entities such as hospitals, nursing homes and meatpacking plants have been and will continue to be targets for suits, litigants would have more difficulty proving they’ve contracted the virus at most business locations. That said, it will be incumbent on businesses to take every precaution to set up tight protocols to protect employees and visitors to limit exposure to legal action.
Though we are in uncharted waters legislators are debating whether to enact business liability protection to give entrepreneurs more comfort while they restart their businesses. New York has already enacted liability protection for healthcare facilities, nursing homes and long-term care providers as part of the state budget. This shield, signed into law on April 3, immunizes health care facilities from liability for negligence (but not gross negligence or intentional acts) during the COVID-19 crisis. N.Y. Public Health Law § 3082.
As to immunity for businesses beyond healthcare facilities, other states have taken up the issue. Utah recently enacted a statute which makes businesses immune from civil liability for exposure to the virus. Arizona and Florida are considering similar laws.
Congress, too, is debating the issue. The Senate Judiciary Committee has held hearings evaluating the merits of immunity protection for businesses.
In the meantime, coronavirus infection litigation has sprung up. A group of nurses in New York sued the hospital that they worked at, citing an increased risk of contracting the virus. Sickened McDonald’s employees in Chicago sued, claiming they were infected at work. Staff of a meatpacking plant in Missouri sued their employer after a virus outbreak at the facility.
Built-In Advantages For Many Businesses
Even without statutory liability protection, though, businesses already have some advantages in defending such litigation.
First, claimants would have to prove that a business acted unreasonably regarding the virus. If businesses take precautions recommended by governmental authorities like the CDC and observe industry best practices, negligence will be difficult to prove.
Moreover, plaintiffs will have to establish that the business was the proximate cause of infection. Given that exposure could have happened anywhere (e.g., at home, shopping, commuting) and that symptoms appear, if at all, days after infection, it will be hard to prove that the business caused a particular person’s illness.
And in a lawsuit between an employer and employee, the employer might argue that any virus claim should be covered under worker’s compensation insurance and that the employer has no further liability beyond the insurance.
Even if no liability legislation is put in place, as long as they take reasonable precautions to prevent infection, businesses have less to worry about than they might otherwise think.
Judith Bachman is the founder and principal of The Bachman Law Firm PLLC in New City. firstname.lastname@example.org 845-639-3210, thebachmanlawfirm.com