Protecting Your Business When Reopening During the COVID-19 Era
Covid-19 has seemingly brought the American economy to its knees, forcing businesses to close their doors for indefinite periods of time. After nearly two months of shutdowns, it’s apparent that Americans are ready to get back to work, and federal, state, and local governments are making plans to slowly allow businesses to reopen with certain conditions.
Some business owners have expressed fear that if a customer contracts COVID-19 from an employee and that customer gets sick or dies, the company could potentially be exposed to liability. If you’re a business owner with a physical building or “storefront” that your customers visit, you owe a duty to provide a reasonable level of safety to your customers or other invitees to your business. This doesn’t mean you are required to guarantee complete safety, and Tennessee courts have held that businesses are not “insurers of their customers’ safety.”[1] However, generally you do owe your customers, or any invitee to your business, (1) a duty to maintain the premises in a reasonably safe condition, (2) the duty to inspect the premises to discover dangerous conditions reasonably recognizable by common experience and ordinary prudence, and (3) the duty to either remove or warn of the dangerous conditions.[2]
Take Adequate Precautions
You need to make sure that your company is taking adequate precautions to prevent the spread of COVID-19 to customers, employees, and any other invitees. That doesn’t mean that you have to find a cure for the disease or, as noted above, “insure” their absolute safety, but you do need to take reasonable steps to prevent the spread of the virus. An easy way to do so is to pay attention to the current CDC guidance(https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html) and follow it.
The CDC recommends wearing cloth facemasks when possible. Employees should wear plastic or latex gloves when they have to make physical contact with anything that could come in contact with a customer or another employee, and they should change the gloves any time they come in contact with someone or something that could spread the virus. Regular handwashing should be required and easy to accomplish, and employees should be reminded of proper cough and sneezing etiquette. Have ample supplies of hand sanitizer and wet wipes available, and encourage employees to use them after touching something handed to them by a customer, including cash. If possible, check employee temperatures at the start and end of shifts and require that any employees exhibiting symptoms of COVID-19 stay home.
On top of properly supervising your employees, you may want to revisit your sick leave policies and consider whether those incentivize employees to disclose whether they are sick or whether they incentivize employees to work when sick.
And, of course, practice and encourage social distancing. As frustrating as it can be, dispense with the usual pleasantries like a handshake, fist-bump, or a hug. Stay a reasonable distance apart from customers, and make sure that you don’t allow your business to fill to capacity. Many retail establishments are placing clear markers six feet apart, showing where customers should stand when in line. In fact, many state and local governments are requiring that certain establishments only open up on a partial-capacity basis for the time being.
By taking adequate precautions, in the event of a lawsuit you will be able to show that you took reasonable measures to keep your employees and customers safe and that you were diligent in seeking out and addressing any unsafe conditions.
Post Notices in Conspicuous Areas
You may also want to consider posting a notice or warning sign on your door or in other conspicuous areas where your customers will see it. An adequate notice will be easy to locate and read, providing everyone coming in and out of your building a detailed (within reason) description of the risks of entering or interacting with your workers.
These notices don’t need to be extraordinarily complex, but they should make it clear that COVID-19 is still a threat and there is always a possibility that a customer could catch it. It also should make clear that while your company is making its best efforts to prevent the transmission and spread of the Coronavirus and is following CDC guidelines, there’s no way you or your business can completely mitigate all risks of spreading the virus.
The combination of this type of candid disclaimer and your customer’s subsequent decision to enter the premises probably does not constitute a “waiver” of their right to take legal action if they get sick. But it does help show that you, as the responsible business owner, did what you could to keep the public informed of the risks, and that by coming onto your premises despite the notice, they arguably assumed the risk that they could catch the virus.
Consider a Liability Waiver
If possible and amenable to your business, and if your employees come in close personal contact with your customers or clients (such as a hair stylist, manicurist, masseuse, etc.), consider having your customers, clients, or vendors sign a waiver before doing business with you. Again, it may not be dispositive, but it will show that they came into the business relationship informed of the risks.
Like the notices discussed above, these types of liability waivers don’t need to be extraordinarily complex. The customer should acknowledge that COVID-19 still exists and that there’s always a possibility that the customer could catch it. Second, the waiver can state that your company and employees are abiding by CDC, state, and local guidelines to help prevent the spread of COVID-19. Third, the waiver should make clear that while your company is making its best efforts, you’re not perfect and that there’s no way you can completely mitigate all risk of spreading the disease. In some cases, it may be a good idea to specifically address what type of preventative measures you are taking in order to give some assurances to your customers, but if you do so, you need to make sure that you’re actually following those measures so they won’t be used against you later if someone gets sick following a visit to your establishment. Finally, you need a statement making clear that the customer has been advised of all the risks, is totally aware of the risks, and still agrees to use your services.
Overall, it is important that your liability waiver is clear and concise. Courts are less likely to enforce liability waivers that are confusing or filled with legal jargon. Understand that while Tennessee courts may enforce a waiver for adults, parents generally may not bind their minor children to pre-injury waivers of liability, releases, or indemnity agreements.[3]
Conclusion
As the overused saying goes “we are in unprecedented times,” and no one knows for sure what the next several months will look like. But by being proactive and taking adequate precautions, you can help mitigate the risk of liability if one of your customers or clients gets sick after coming in contact with one of your workers during this reopening phase.
If you need help preparing to reopen your business, contact the attorneys at Meridian Law at (615) 229-7499, info@meridian.law, or www.meridian.law.
[The information provided above is not intended to constitute legal advice. It is for general informational purposes only. Readers should contact an attorney to obtain advice regarding any particular legal matter. No reader should act or refrain from acting based on information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein is applicable to your particular situation. Use of this website do not create an attorney-client relationship between the reader or the website authors or contributors.]
[1] Ferguson v. Wal Mart Stores East, LP 2011 WL 3739157 (E.D. Tenn. 2011).
[2] Smith v. Inman Realty Co., 846 S.W.2d 819, 823 (Tenn. Ct. App. 1992)
[3] Blackwell v. Sky High Sports Nashville Operations, LLC, 523 S.W.3d 624 (Tenn. Ct. App. 2017).