How do I limit my business’s liability during and post COVID-19?

In this 5-minute read:

  • What steps can your business do to help reduce liability for COVID-19?
  • Is there any legislation in place to protect businesses?

As businesses start to reopen (and re-reopen), according to their local and state guidelines, the fear of contracting COVID-19 is still a major concern. Employee and customer safety should be a top priority as you reopen your business. 

Not only is the health and safety of your staff and customer pertinent to running a successful business right now, but taking the right precautions could just keep your business safe from any legal implications if someone contracts the disease and tracks it back to your business. 

Remember, in America, anyone can file a lawsuit for any reason. All they need is time and money—the suit doesn’t have to be based on anything factual. Hopefully the judge will weigh any evidence presented and throw out any frivolous/baseless suits, but it’s still a hassle for you and can be expensive, so it behooves all business owners to do what they can to limit the possibility of lawsuits.

IMPORTANT NOTE: this article does not constitute and is not intended to be legal advice, but rather common sense. Consult a lawyer familiar with your local laws about ways you can help reduce your liability.

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What can I do to limit my business’s liability for COVID-19?

Several precautions can be taken to help your business limit its liability for a customer or employee who may contract COVID-19. It can be difficult to track down where a viral contraction came from, particularly in places where there are a high number of confirmed cases, but it is still your responsibility to take every action possible to limit the spread of the disease. 

Proper documentation of and adherence to your state’s health department and CDC recommendations will help you demonstrate to any concerned parties that you did what you could to prevent transmission of the virus.

Proper hygiene and sanitizing

Take the necessary measures to properly sanitize your business facilities and encourage good hygiene practices among your employees and customers. 

Be sure to follow any state and local guidelines as you open up your business. 

Best practices for sanitizing and hygiene:

  • Provide and encourage employees and customers to wear PPE like face masks, safety glasses, and gloves when appropriate
  • Regularly clean and disinfect surfaces that come into frequent contact with people (chairs, tables, countertops, door handles, products, etc.) Check out this article on proper sanitizing techniques
  • Check employee temperatures as they arrive at work, and send anyone home who has a fever
  • Don’t allow employees to come into work if they have been showing any symptoms that could indicate COVID-19 (cough, fever, aches, chills)
  • Require social distancing by limiting the number of people in your facility at one time and taking other social distancing measures (spreading tables further apart, adding markers on the floor where lines congregate, closing waiting areas, etc.)
  • Follow guides set in place by OSHA to prepare your workplace for COVID-19

Go deeper—the following articles have additional tips and best practices for various industries:

Continue to encourage contactless transactions and delivery when possible

The less contact your employees have with customers and each other, the less likely someone is to contract COVID-19. Continue to use methods for contact-free transactions if you have this in place already—have customers prepay for their products or services online. 

Read more: Cash, contactless, chip, and reduced-contact payments during COVID-19

If you provide goods to your customers, continue to offer curbside pickup or delivery services and encourage and incentivize your customers to use that method of shopping until the risk of COVID-19 lessens. Some business owners have opted to keep their shops closed to the public and only offer contact-free services until they feel the threat of COVID-19 has decreased even further. 

If you provide a service, particularly in a customer’s home, make sure to maintain established social distancing and sanitization procedures and opt for electronic signatures of any paperwork that may be necessary for the transaction. 

Consider a liability waiver

A liability waiver is a contract signed voluntarily by a customer, and it generally states that the customer waives their right to take legal action should injury occur due to the negligence of any party (business or customer). 

Your business might consider requiring liability waivers for customers that want to shop in your store, sit down at your restaurant, etc, in order to help prevent them from suing your business if they contract COVID-19. 

It’s difficult to tell whether this will be effective in a court of law since the entire situation is so new, but it’s worth discussing with your business attorney to get their recommendations based on how your state views liability waivers. Generally people can sue regardless of whether they’ve signed a waiver, but it may help inform people of potential risks, and demonstrate to a judge or jury that you made customers aware as much as possible.

Consult your risk management firm or insurance provider and ask about COVID-19 coverage

Any business should have a robust insurance policy against customer injury or other liability related to your business. Speak to a qualified risk management expert or your insurance agent about whether you need to add any additional coverage due to COVID-19 concerns. 

Take the proper action and document your processes if an employee contracts COVID-19

You may have an employee that contracts COVID-19 while they are not at work. It’s important to stay proactive in these instances and to keep communication with that employee to make sure they don’t come into work until they have been cleared by a doctor as being recovered from the disease. 

You should also inform your other employees of their possible exposure to the disease so they can choose to get tested and be aware in case they start to experience any symptoms.

Communicate with your employees and customers 

Transparency and open communication with your employees and customers is critical during this time. In order to keep your business running smoothly, it’s important to let your customers know of any changes that are taking place due to COVID-19. 

Likewise, you need to keep your employees informed of what is going on and continue to encourage and train them on changes that take place to daily operations, especially where health and safety are concerned. 

Is Congress establishing legislation to protect businesses from COVID-19 liability?

There has been discussion from federal authorities about enacting some legislation that protects businesses from COVID-19 related lawsuits. However, as of now, there isn’t any national legislation in place. 

Specific states have started to look at this on the state level, and some have even set in place new legislation to protect certain types of businesses from lawsuits related to COVID-19. 

On May 11, 2020, the Oklahoma Senate passed a bill that offers liability immunity for businesses that are following CDC, OSHA, and state guidelines for health and safety. 

We may start to see more bills pass across different states as they allow businesses to reopen. 

Our biggest recommendation is to follow your state health department’s guidelines exactly, document and track your efforts, and do your part to keep your facilities and employees healthy while limiting contact as much as possible in these beginning phases of reopening. 

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