On a worldwide basis, governments are evaluating the possibility to ease restrictions introduced to eradicate COVID-19 and which concern the lockdown measures (for example the opening of non-essential businesses, extending the hours of operation of essential businesses and flexibility of certain activities).
In the April 25 2020 online edition of The Wall Street Journal, Jacob Gersham writes in his article “Lawsuits Pile Up Against Lockdown Measures”, that in the USA it has even gone as far that lawsuits are being filed to challenge the strict measures that states imposed to contain the coronavirus pandemic.
Once the restrictions are lifted or eased, are you as a company and as an employer ready to keep your clients and employees safe when these clients visit your place of business, respectively when your employees go back to work?
It is important to note that this management and legal brief by no means is to be interpreted as the Holy Grail on how to keep your clients and your employees safe and how to avoid any kind of liability. We would like you to be mindful of the risks associated with the easing of restrictions as in certain jurisdictions, you as a business owner can more easily be held liable by a client and/or an employee if that person contracts COVID-19 as a result of no proper precautions and protocols being in place. Remember, these are unprecedented times and there is very little case law to give any indication what is the right course of action during these times. In principle, as a business owner you need to keep your place of business safe and as an employer you need to keep the workplace safe.
What necessary precautions and protocols are expected from a reasonable business owner to ensure the safety of the clients and the employees? Of equal importance is the question, what necessary and reasonable precautions and protocols can an employee and a client expect from the business owner when going to work, respectively when visiting your place of business? Can it be argued that if a client visits a non-essential business and contracts COVID-19 whilst visiting this place of business, then is it the client’s own fault as this client should have known the risks? On the other hand, will the flipside of this be that if you are open to the public, will the client expect the business owner to act responsibly and accordingly by taking the necessary and reasonable precautions and protocols to ensure the safety of the client when the client visits your place of business? How does this play out when you have to go to an essential-business such as a grocery store? Did the client then still willingly take a risk? Moreover, what about the employees that you as a business owner order to work? Did you as an employer do everything that is reasonably and necessarily expected as a good employer to protect your staff?
As a good business owner, you must follow the guidelines issued by the authorities in your country and you must enforce these guidelines to the letter, even if this means telling clients to leave if they do not abide by your instructions or giving an employee a written reprimand for not following protocol.
We are of the firm opinion that as a business owner and as an employer, you need to continue asking yourself if the guidelines issued by the authorities in your country are enough to ensure the safety of your clients and employees (visiting and respectively working at your place of business) and if you cannot be considered negligent for not doing more. You also need to ask yourself if certain precautions and protocols that you are following and that are not in the guidelines issued by the authorities in your country are not putting your clients and employees at more risk (we all know about the discussion about wearing protective latex gloves and the possibility of cross contamination).
An attorney in the USA based in the state of Georgia even recommended for business owner that have liability insurance, to contact their insurance companies to see what risk there is for the company if it reopens and if the risk of contracting COVID-19 is covered.
We can also recommend to have your precautions and protocols that are in place documented, continuously updated and a copy given each time to your staff. Protocols and precautions that are in place for your clients need to be visible for these clients before they go in.
We can furthermore recommend that a dedicated person be appointed to continuously monitor if the precautions and protocols are being followed by both clients and employees and to empower this dedicated person to immediately be able to taken action if and when necessary.
We can additionally recommend that a log be held with the names of phone numbers of all persons coming into your place of business. Although privacy issues might arise, the purpose of this log is to help with contract tracing if this becomes necessary. These persons need to be told this and they need to agree to this. This log is not be used for anything else.
Again, we would like to point out that these are recommendation that we have implemented in our own organization. These recommendations are by no means a definitive list of what to do in order to avoid any kind of liability when something happens. Therefore, another recommendation is to check with companies similar to yours, to see what they are doing and together you can come up with a best practice during this crisis.
These are trying times and the way we do business is changing. But change does not mean that you have to open yourself up to a liability suit and change does not mean that we have to care less for our employees and our clients.