COVID-19 UPDATE from Bellas & Wachowski

Could Reopening Businesses Be Held Liable for COVID-19 Infections?

Chicago Business Lawyer George Bellas answers questions for business owners.

CoronaVirus FAQs

Business owners are anxious to reopen their doors and revive their sales.  But there are concerns that the proper precautions be taken to protect their employees and customers, at a time when no treatment or vaccine for COVID-19 appears imminent.

As governors and mayors begin to ease restrictions on businesses, previously shuttered retailers, restaurants and others have another concern that could hold them back from reopening just as surely: whether and to what extent they can be held legally liable for employees or customers who contract coronavirus.

At the federal level, these protections would be strongest if they came from legislation passed through Congress, as opposed to regulation or executive order. But Congress would need to have a meeting of the minds in striking the balance between Republican concerns about frivolous lawsuits and Democratic concerns about inadequate protections.

Business groups like the U.S. Chambers of Commerce have been lobbying for protections against lawsuits related to injuries or deaths due to infections, while consumer groups and labor unions have raised competing concerns about how such shields would impact businesses’ standard of care, believing that too many protections might make customers feel unsafe.

The devil may be in the details of what businesses would need to do to find “safe harbor” from lawsuits. Such standards, which could be used as evidence in federal or state courts, could include requiring workers and customers to wear face masks, socially distance from other people as much as possible, and possibly even to be tested for COVID-19.

Businesses will need to consult state law for most matters related to workplace safety, workers’ compensation and negligence lawsuits brought by customers. It’s questionable whether a COVID-19 infection would fall under workers’ compensation, however, since that system is focused mostly on physical injuries.

The Business Roundtable has requested that the U.S. Centers for Disease Control recommend how best to achieve worker and customer safety and has asked that governors attempt to achieve consistency in their policies. The roundtable also has disseminated guidance on issues like distancing, size of gatherings, travel restrictions, cleaning protocols, and the need for screening, testing, contact tracing, and protective equipment.  The advice from The Business Roundtable recognizes that there is no one-size-fits-all solution and that the appropriate steps to take will vary among different sizes and types of businesses. The roundtable considers it unlikely that businesses will receive anything close to blanket immunity from liability, so they will need to consider their potential risks, posed by the particulars of their operations, and plan accordingly.

Companies might want to create a task force with board-level oversight to consider potential legal liability, examining governmental orders and public health guidance while putting into a place a plan that covers issues like continued telecommuting, staggering hours and days, modifications of space and sanitation protocols. Some employers will put into place medical checks, and all should require employees to notify their supervisors if they experience symptoms. Other considerations could including asking that meetings be held by phone, common dining facilities be closed, and wearing of face masks be encouraged.

Given that COVID-19 has an incubation period of two to 14 days, it might be difficult to prove that a customer, in particular, contracted the virus at a specific business on a specific day. And under current law, plaintiffs must prove negligence, which has led to some to wonder how much danger reopening imposes on business in the first place. But, as with taking steps to guard against contracting coronavirus in the first place, they’re probably better safe than sorry.