By Thomas M. Bona.
As states begin to reopen, some businesses are choosing to delay opening their doors. Business owners are considering the risk of a wave of lawsuits that may be filed as a result of deciding to begin work. Employers face potential liability not only from employees who may contract COVID-19 on the job, but also from customers who believe they were exposed by employees. As quoted by Todd Maisch, head of the Illinois Chamber of Commerce, “[f]or an employer wanting to get back to normal business, this could be the third crisis facing the nation. The first being the health crisis, the second being the economic crisis, the third being years of a liability crisis.”[1]
Personal injury and wrongful death lawsuits are concerning for businesses that are already suffering financially from shutdowns. Though owners are attempting to protect themselves, this is an unprecedented situation that the Courts will have to face, and responses may vary state to state.
In April, Georgia was at the forefront of the push to reopen. On April 24, 2020 Georgia Governor Brian Kemp issued an order reopening certain businesses including hair salons. The salons that have chosen to reopen have set up strict protocols. For example, a single customer may be allowed in a shop at a time and customers must agree to temperature checks before being permitted to enter. Focus on sanitary conditions is even more stringent than usual, and employees and clients must wear masks.
Nevertheless, business owners are still concerned with potential litigation if either an employee or customer was to contract the virus. A salon in Atlanta has decided to take precautions by having all customers agree to signing a waiver, which states “[w]hile we are taking your safety and that of our staff very serious, by employing new safety and sanitation initiatives, we cannot guarantee that any of these measures will protect you from contracting COVID-19” and that the customer will not initiate litigation against the salon.[2]
As more states continue to open, COVID liability waivers appear to be the norm. Gyms, medical offices, and other businesses are requiring customers to sign such waivers before utilizing services.[3] As New York begins the reopening process, waivers are common-place, including at the New York Stock Exchange, where visitors are required to waive any COVID claims.[4]
The Walt Disney Co., which plans to open the Walt Disney World amusement park starting July 11th, 2020, has prepared a waiver for visitors to its properties that contains the language that risks of visiting include “severe illness and death”.[5] Yet, “[t]hat warning did not deter the throngs who waited for hours to buy Mickey Mouse swag or apparel from familiar brands outside the Disney Springs shopping center that reopened on May 20.”[6]
While waivers may restrict customers from filing lawsuits simply for contracting COVID as a customer, they do not prevent negligence actions for businesses that did not properly prepare or sanitize their spaces.[7] How will negligence in these cases be determined going forward, especially considering the diverse sets of protocols that vary county to county, state to state? Further, the enforceability of such waivers remains to be seen.
The National Law Review is considering these new risks and liabilities. A recent article explained:
But there are risks as well. Obviously, the biggest risk—and a business owner’s greatest fear—is that an employee, customer or client gets sick at work or on the premises. This could lead to a range of claims against a business, ranging from employment claims and Worker’s Compensation filings to personal injury or even wrongful death lawsuits…. An employee easily could allege some type of negligence, such as failure to provide a clean work environment, failure to provide PPE, etc. How it’s going to shake out in the courts remains to be determined…Some litigation already has been filed—it is not a theoretical risk.[8]
What then can businesses do to protect themselves from increased litigation? Though the answer is currently unclear, the federal government is considering liability protection for employers who do choose to open their doors during the pandemic. The U.S. Chamber of Commerce is currently lobbying for a liability shield, while workers’ rights advocates are concerned that such a shield would lead to businesses cutting corners on employee safety and sanitation. One such solution would be that employers would only be shielded from liability if the guidelines prepared by the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration are strictly adhered to, rather than absolute protection from any form of COVID-19 related litigation.[9]
While the Congressional debate to shield businesses continues, states such as “Alabama, North Carolina, Oklahoma, and Utah have issued executive orders or passed legislation to give businesses more protection if their workers or customers get the coronavirus.”[10] A COVID-19 relief bill is expected to pass by the end of Summer 2020 and some form of liability protections are expected to be included, though details of the extent of these protections is unknown.[11]
On the other hand, there is a push back from some members of the legal community that fears of a new wave of COVID litigation may be exaggerated. Linda Lipsen, the chief executive of the American Association for Justice argues, “[t]he idea that there is going to be this cavalcade of lawsuits is a total myth…[o]utside of meatpacking plants, cruises, nursing homes, veterans homes and other hot spots, there is not going to be that race to the courthouse because there are already all of these barriers to getting to court.”[12]
Nonetheless, this new possible wave of litigation is not limited to personal injury and wrongful death lawsuits – it also extends to Workers’ Compensation litigation. Illinois was the first state to attempt to amend its current Workers’ Compensation regulation, seeking to protect workers who were deemed essential and contracted COVID-19, ensuring coverage for medical expenses, lost wages, long term impairment and death benefits.[13] An Illinois judge, concerned with the possible influx of claims, halted the amendment, reverting to the current standard that employees must prove that they actually contracted the virus while on the job, a difficult bar to meet. Other states have moved forward attempting to ease the burden of filing a Workers’ Compensation claim, leading to concern from business groups.
It is not yet clear how New York will deal with an inevitable increased flow of Workers’ Compensation claims as it sits as the heart of the crisis. Currently, workers must prove that their contraction of COVID-19 is an “occupational disease” under the New York Workers’ Compensation Law.[14] New York is yet to define COVID-19 as an “occupational disease”, and the current standard that must be met for a successful Workers’ Compensation claim is that “the affected employee must show a direct link between the illness and the nature of his or her employment, as opposed to a condition in the workplace, ordinary contact with co-workers, or other unrelated factors.”[15]
Under the New York standard, it is likely that medical professionals who are exposed to the virus in the course of their employment are likely to file successful claims, while it remains unclear if office workers may be afforded the same opportunity. Further, as businesses continue to telework, it is unlikely that at-home employees who contract the virus could possibly file a successful claim. Nevertheless, the standard may change and businesses should be prepared for new and complex Workers’ Compensation issues.
In conclusion, if a business so chooses to reopen, it must ensure that it follows current safety recommendations by both the federal and state government to limit liability. Businesses should keep up to date with current federal legislation concerning liability as this unprecedented crisis moves forward.
[1] Elejalde-Ruiz, Alexia, If you get sick with COVID-19, is your employer liable? As businesses prepare to reopen, worker safety is a priority., Chicago Tribune, May 4, 2020, https://www.chicagotribune.com/coronavirus/ct-coronavirus-employer-liability-workplace-exposure-20200501-dye6husnszchpnpaadiensn2ja-story.html.
[2]Stevens, Alexis, Scenes from Georgia’s cautious reopening: Lines start early for haircuts, April 24, 2020, https://www.ajc.com/news/lines-start-early-for-haircuts-georgia-begins-open/jWJvWglc5N7RlQt1Z6oDTN/.
[3] Why Your Gym, Dentist, or Hairdresser May Ask You to Sign a COVID-19 Liability Waiver, June 17, 2020, https://www.healthline.com/health-news/why-your-gym-dentist-or-hairdresser-may-ask-you-to-sign-a-covid-19-liability-waiver.
[4] Barlyn, Suzanne and McCrank, John, Sign Here First: Reopening Businesses Turn to Liability Waivers, Disclaimers, Insurance Journal, June 1, 2020, https://www.insurancejournal.com/news/national/2020/06/01/570571.htm.
[5] Id.
[6] Id.
[7] Id.
[8]General Liability Considerations and Potential Exposure in Reopening from COVID-19 Shutdown, National Law Review, May 1, 2020, https://www.natlawreview.com/article/general-liability-considerations-and-potential-exposure-reopening-covid-19-shutdown.
[9] Horsley, Scott, As Businesses Reopen, A Fight Is Brewing Over Worker Safety Lawsuits, May 6, 2020
[10] Swanson, Anna and Rappeport, Allen, Businesses Want Virus Legal Protection. Workers Are Worried., New York Times, June 12, 2020, https://www.nytimes.com/2020/06/12/business/economy/coronavirus-liability-shield.html.
[11] Id.
[12] Id.
[13] See footnote 1.
[14] Colvin Stone, Lindsay, New York Workers’ Compensation Law: Is COVID-19 Compensable?, National Law Review, April 30, 2020 https://www.natlawreview.com/article/new-york-workers-compensation-law-covid-19-compensable.
[15] Id.