How To Limit Your Business's Liability for COVID-19 Infections | Calkins Law Firm

Limiting Your Business's Legal Liability for Coronavirus Infections

May 11, 2020

As businesses begin to reopen, concerns regarding legal liability naturally move to the forefront. The novel coronavirus, which is also known as SARS-CoV-2 and causes COVID-19, has not yet been fully eradicated, which means that there is possibility employees and customers may become infected in the workplace. These infections, in turn, could lead to demands of compensation and even legal action from the affected persons. 

There are a number of steps that employers can take in order to limit potential employer liability issues following reopening.

Be Aware of Congress's Decisions

Many business owners have already begun to encourage President Trump and Congress to take action to protect them against legal liability when businesses reopen. These requests have been made in response to legal action which employees and customers have already taken within several major industries. In particular, Carnival Cruise Lines was sued by passengers who experienced virus infections while aboard one of their ships. Other businesses that have been targeted by irate employees include Amazon and Wal-Mart. 

Both President Trump and Senate Majority Leader Mitch McConnell are aware of and have commented on the issue. In particular, McConnell has identified the issue as a priority to be addressed as soon as lawmakers resume work. 

As of now, no official decision has been made. However, several options have been considered, including granting businesses immunity from certain lawsuits and creating a monetary fund similar to that established in the wake of 9-11. Business owners should remain aware of all actions taken by Congress and the White House, and prepare to follow any regulations decided upon. 

Provide Reasonable Protection

The primary legal obligation of a business owner following reopening will be to provide protection from coronavirus infections within their facilities. What this looks like can differ depending on the business. Suggested steps to take include: 

  • Providing personal protective equipment, such as masks, for employees, particularly those in customer-facing positions
  • Instituting more frequent cleaning and sanitizing of all office and other business spaces 
  • Installing clear protective shields at key locations between employees and customers, such as cash registers or help desks
  • Establishing distancing-friendly policies, such as one-way aisles in stores and marked spaces for waiting in line 

An employer who provides these protections may be able to significantly limit their legal liability in the case of infection. They will be able to prove to the courts that they have taken concrete action to protect both customers and employees. 

Understand Employees' Rights

A number of existing employment laws and organizations will likely be involved in the regulation of businesses post-reopening. While specific guidelines regarding COVID-19 are still in development, here are some laws of which all business owners should be aware: 

Occupational Safety and Health Act (OSHA)

OSHA's General Duty Clause states that employers have a legal obligation to provide a "safe and healthful workplace". Currently, the Occupational Safety and Health Administration is working together with the World Health Organization and Centers for Disease Control to develop specific coronavirus-related precautions and actions. 

Employers should comply with all regulations put forth by OSHA. In the absence of specific guidelines, they should aim to provide reasonable protection against infection in the workplace as discussed in the section above. 

In addition, employers should create a concrete Response Plan for dealing with the situation. OSHA will expect the employer to conduct a thorough hazard assessment of all physical workspaces and outline how infection risk will be limited as much as possible.

Worker's Compensation 

Employees who contract coronavirus in the workplace may be entitled to benefits according to Worker's Compensation regulations. They may be able to receive total temporary disability benefits in lieu of wages, as well as necessary medical treatment. In addition, should an employee develop a permanent disability as a result of COVID-19 infection - such as difficulty breathing - they may be entitled to further awards via the Americans with Disabilities Act (ADA). 

Family and Medical Leave Act (FMLA) 

Business owners who employ more than 50 individuals are entitled to provide up to 12 weeks of unpaid leave in the event an employee develops a "serious health condition" such as COVID-19. They may also be entitled to similar amounts of leave should a close family member become infected. 

Although it is not required by FMLA, employers may also wish to consider providing additional unpaid leave in order to encourage employees to stay home during the period when they may be infectious, as COVID-19 is believed to have an incubation period of up to 2 weeks. 

Calkins Law Firm Can Help You 

Calkins Law Firm is the business law firm of choice for business owners in the Buffalo, Cleveland, and Chagrin Falls areas. Our experienced business attorneys can advise you regarding how to avoid legal liability as you reopen your business following the COVID-19 pandemic. 

Contact Calkins Law Firm to schedule an appointment with a business attorney today. 

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