The COVID-19 pandemic has business and property owners facing uncertain and challenging times. It is possible that business and property owners may be faced with lawsuits of different types following the pandemic.
In most states, a premises owner or operator owes a duty of reasonable care to maintain the premises in a reasonably safe condition. A breach of this duty can result in liability. What this means for COVID-19 remains to be seen, but the likely issue will be whether the owner or operator took reasonable measures to prevent exposure.
During this time of uncertainty, possible considerations for business and property owners, where reasonable, may include:
- Distributing information to employees, customers, tenants, and employees about preventative steps they can take individually.
- Providing contact information or sources for questions, such as the CDC and WHO.
- Posting reminder notifications about preventative steps in commonly used spaces.
- Placing hand sanitizer in high traffic areas and ensuring soap and water are readily available in any restrooms.
- Posting signage to discourage or prohibit entry by anyone who may have symptoms of COVID-19.
- Mandating that employees who may have COVID-19 symptoms stay home and encouraging them to seek medical advice and testing when the situation requires it.
- Mandating that all employees who test positive for COVID-19 contact appropriate personnel.
- Limiting the number of on-site meetings, vendors, or other third-parties that enter and conduct any non-essential business via telephone or teleconference.
- Increasing the frequency of cleanings and sanitizations to daily for all areas and to several times daily for high traffic and other frequently touched areas such as doors, doorknobs, carts, and countertops.
- Ensuring that all cleaning personnel and cleaning vendors are aware of possible exposure and that they are properly equipped and certified for cleaning hazardous conditions.
- Evaluating and considering whether policies and procedures are aligned with official recommendations as to the COVID-19 pandemic, possibly including those policies related to sanitation, cleaning, telework, privacy, security, compensation, leave, and employee screening.
- Evaluating any leases as they related to security, sanitation, business operations, and access to the property.
- In the event of an employee or known customer testing positive for COVID-19, considering temporary closure, sanitation, and notification of appropriate persons.
- Following all CDC and other government related guidelines.
All of these considerations may not be reasonable – or even applicable – depending upon the type of the industry, the property itself, the size of the business, and other factors.
There are also privacy concerns related to notifying co-employees customers, tenants, or family members of a positive case or potential exposure. When or if an employee (or other person) tests positive, the business owner should notify all persons who have come into contact with or worked closely with that employee (or other person). Those persons notified should seek medical care and quarantine for fourteen days. However, the name of the employee (or other person) who tested positive should never be disclosed by the employer (unless express permission is given).
There may also be concerns that arise related to leases or business vendor agreements. Each of those should be reviewed to evaluate the party’s options under the terms of the agreement and whether any amendment may be necessary. Issues may also arise in the workers’ compensation and labor and employment contexts.
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If you have any questions or need assistance understanding and implementing the guidance, please contact one of our attorneys.
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