What actions are reasonable for businesses during the pandemic and beyond?

COVID-19 and Related Governmental Orders Have Changed Our World

Since the novel coronavirus migrated from China to U.S. soil, we have been barraged by 24/7 reporting and social media commentary regarding how many people have fallen ill, how many people have been hospitalized, and how many people have died.  President Trump has described the virus as an invisible “monster” and our efforts to mitigate its spread as a “war.”  Indeed, we receive daily statistics regarding new infections and deaths that are like the casualty counts from a battle.  Every day, we hear from the White House Coronavirus Task Force, which is comprised in part of public health officials and previously unknown epidemiologists who now have become national celebrities.  Whether intended or not, the constant risk communication from federal and state government officials and the non-stop reportage of sickness and death from the media have caused a tidal wave of fear regarding the virus.

By mid-March, the President, governors, mayors, and county officials began to urge the public to remain at home, to avoid work, and to avoid large gatherings in order to slow the spread of the virus, i.e., “to flatten the curve.”  We were told strict “social distancing” measures were required to prevent a spike in the cases of COVID-19 (the disease caused by the novel coronavirus) and hospitalizations that would overwhelm existing medial infrastructure. Now many politicians, experts, and commentators are suggesting it is not sufficient merely “to flatten the curve,” but rather, we should continue “social distancing” measures until next year to protect ourselves from infection until a vaccine or effective treatments for COVID-19 can be developed.  Only time and additional data will tell whether federal, state, and local governmental reactions to the pandemic have been reasonable or necessary; however, until there is public consensus to reopen the economy, it is likely governmental officials will err on the side of caution and will continue to impose many restrictions on our daily activities.

New Standards of Care for Businesses are Emerging

For better or worse, the COVID-19 pandemic has increased our awareness of the danger of contracting illness through viruses and, as a direct result, the standard of care businesses must meet to protect employees and customers has changed.  Unusual times require unusual actions and what may have been reasonable before the pandemic may not be reasonable now.  Examples of the enhanced standard of care by the “essential” businesses that are fortunate enough to be open during the pandemic include systematic and continuous use of disinfectants on surfaces, rigorous requirements for hand washing and use of hand sanitizers, construction of protective screens for cashiers, requiring employees to wear masks, checking employees for fever, using mechanical devices to exchange goods and money with customers, and “social distancing,” e.g., limiting the number of persons in a physical space and maintaining safer distances between customers and employees.  In sum, conduct that would have been considered normal and appropriate last year may be considered negligent today.

Further, it is possible, if not likely, many of the enhanced systems and procedures imposed by governmental action or developed by businesses to protect their employees and customers during the pandemic will be continued even after the pandemic has subsided.  After all, the novel coronavirus is but one of many viruses, including various strains of influenza, that can infect employees or customers at any time.  Thus, businesses that want to minimize the risk of future lawsuits should take note of the most recent efforts and best practices to promote hygiene and to protect employees and customers from disease.

For example, on April 10, 2020, the FDA held a call with industry members to discuss best practices for retail food stores, restaurants, and food delivery services during the COVID-19 crisis.  These best practices were broken down into four categories: (i) Managing Employee Health (including Contracted Workers); (ii) Personal Hygiene for Employees; (iii) Managing Operations in a Foodservice Establishment or Retail Food Store; and (iv) Managing Food Pick-Up and Delivery.  Here are a few examples of the FDA’s recommended best practices for each category:

Managing Employee Health

  • Instruct employees with symptoms associated with COVID-19 to report them to their supervisors
  • Instruct sick employees to stay home and to follow the CDC’s recommendations
  • Sick employees should be sent home immediately
  • Instruct employees who are well, but know they have been exposed to COVID-19, to notify their supervisor
  • Inform fellow employees of their possible exposure to COVID-19 in the workplace, if an employee is confirmed to have COVID-19, while maintaining confidentiality
  • Pre-screen employees (g., take temperature and assess symptoms prior to starting work)
  • Require employees to wear a mask or face covering
  • Require employees to practice social distancing and stay at least 6 feet from other people whenever possible

Personal Hygiene For Employees

  • Emphasize effective hand hygiene including washing hands, especially after using the bathroom, before eating, after coughing or sneezing, and before handling foods
  • Use gloves to avoid direct bare hand contact with ready-to-eat foods

Managing Operations in a Foodservice Establishment or Retail Food Store

  • Follow the 4 key steps to food safety: Always — Clean, Separate, Cook, and Chill
  • Wash, rinse, and sanitize food contact surfaces, dishware, utensils, food preparation surfaces, and beverage equipment after use
  • Frequently disinfect floors, counters, and high-touch surfaces
  • Minimize the time foods being stored, displayed, or delivered are held in the danger zone (between 41°F and 135°F)
  • Discontinue operations, such as salad bars, buffets, and beverage service stations, that require customers to use common utensils or dispensers
  • Encourage spacing between customers while in line for service or check out

Managing Food Pick-Up and Delivery

  • Observe established food safety practices for time/temp control, preventing cross contamination, cleaning hands, no sick workers, and storage of food,
  • Have employees wash hands often with soap and water, especially after using the bathroom, before eating, after coughing or sneezing, or after touching high traffic surfaces
  • Increase the frequency of disinfecting high-traffic surfaces, such as counter tops and touch pads and within the vehicle
  • Establish designated pick-up zones for customers to help maintain social distancing
  • Practice social distancing when delivering food, g., offering “no touch” deliveries and sending text alerts or calling when deliveries have arrived
  • Keep hot foods hot and cold foods cold by storing in appropriate transport vessels
  • Keep foods separated to avoid cross contamination
  • Ensure wrapping and packaging of food to prevent contamination
  • Routinely clean and sanitize coolers and insulated bags used to deliver foods

See Best Practices for Retail Food Stores, Restaurants, and Food Pick-Up/Delivery Services During the COVID-19 Pandemic | FDA, April 17, 2020.

Airlines also have stepped up their procedures to maintain good hygiene during the COVID-19 pandemic.  For example, American Airlines (“AA”) now touts it has implemented enhanced measures to protect customers on its flights, including:

  • Planes are cleaned each day at key touch points with an EPA-approved disinfectant
  • International flights and planes with additional time on the ground receive a 30-point cleaning package each day
  • All planes also undergo a deep cleaning procedure on a regularly scheduled basis
  • Cleaning procedures on international flights and planes that stay overnight at an airport have been enhanced
  • Most planes have High-Efficiency Particulate Air (HEPA) filters that provide a complete air change approximately 15 – 30 times per hour
  • Hand sanitizer and sanitizing wipes are provided to crew members on all international flights

See AA Website https://www.aa.com/i18n/travel-info/coronavirus-updates.jsp.  Further, AA recently announced it will require passengers to wear masks in flight commencing May 11, 2020: A special message from American Airlines.

Failure to Adhere to Newly Developed Standards May Result in Liability

Without going through an analysis of every type of business, it is obvious standards for dealing with employees and customers have become more stringent during the COVID-19 pandemic and further, many of these changes will survive the pandemic and will become part of the new “normal” for businesses.  If enhanced hygiene procedures survive in the form of state or federal regulations, they will become the new baseline for reasonable business behavior; however, courts and juries may determine businesses are required to go even further to meet the standard of care they owe to their employees and customers.  While the appropriate standard of care for businesses will not be a “one size fits all,” businesses of all types will be expected to do what is reasonable to minimize the likelihood of spreading diseases.  Those who fail will be subject to lawsuits and potential liability.

New Lawsuits are Imminent

Indeed, both customers and employees already have filed lawsuits alleging injuries or death due to exposure to COVID-19.  At least two cases have been filed on behalf of passengers who claim to have contracted COVID-19 because cruise lines failed to require crew members to wear masks or to enforce social distancing during cruises.  See Archer v. Carnival Corporation, Case Number 3:20-cv-2381, U.S. District Court for the Northern District of California; Nedeltcheva v. Celebrity Cruises Inc., Case Number 1:20-cv-21569, U.S. District Court for the Southern District of Florida.  In Illinois, the family of a Walmart employee who died after contracting COVID-19 due to exposure to the novel coronavirus has filed a lawsuit claiming, among other things, Walmart failed to screen and to protect workers adequately. Toney Evans, Special Administrator of the Estate of Wando Evans v. Walmart Inc. et al., case number 2020-L-003938, in the Circuit Court of Cook County.  We should not be surprised to see similar claims filed against other types of businesses.

COVID Claims may be Difficult for Plaintiffs to Win but they will be Expensive to Defend

It should be noted infectious disease claims are fraught with challenges for plaintiffs.  For example, a plaintiff must prove he or she contracted the infectious disease due to exposure to a pathogen at the defendant’s offices or facilities, rather than some other place.  Even if a plaintiff clears this hurdle, he or she must prove the business either knew or should have known about the existence of the pathogen at its premises and further that the business failed to take some reasonable action to prevent spread of the disease.  Moreover, most people know they are assuming a risk of exposure to diseases when they are in public and therefore, a plaintiff who asserts an infectious disease claim likely will be forced to assume some portion of liability for any injuries or damages.  For these reasons, plaintiffs filing these types of lawsuits may lose more often than they win; however, even if the risk of an adverse judgment is low, a business still must incur the cost of defense of these types of claims.

Businesses Should Implement Enhanced Protective Measures to Lessen their Litigation Risk 

So, what measures should businesses take, both during the COVID-19 pandemic and beyond, to meet the standard of care owed to their invitees or customers?  Obviously, the measures will vary from business to business based on the layout of the business’s physical space, the number of employees present in the physical space, the number of customers or invitees who visit the business each day, and the nature of the goods or services the business provides.  What is reasonable for a law firm may not pass muster for a restaurant or a physician’s office.  What is reasonable for a movie theater may not be reasonable for a grocery store.

At a minimum, businesses should consider implementing any minimally burdensome measures that might mitigate the spread of infectious disease, such as: (i) sanitizing areas to which customers are exposed, e.g., conference rooms and waiting areas for professional service providers, tables and chairs in a restaurant, check-out counters in stores, etc.; (ii) requiring employees to stay home when they have symptoms of an infectious disease, such as a high fever; (iii) measuring employees’ body temperatures from time to time and requiring any with fevers to go home; (iv) providing hand sanitizer for customers or clients while they are present in the physical office space; (v) requiring employees to wash their hands frequently; and, to the extent it is possible, (vi) maintaining an appropriate distance between customers and employees.  Within reason, the more a business does to protect its employees and customers from infectious disease, the more likely the business will be determined to have behaved “reasonably.” Thus, taking precautionary measures not only could slow the spread of viruses and keep employees healthy, doing so also lowers the risk of litigation and of being found liable for negligence.

James E. (Jim) Davis handles all types of commercial and intellectual property disputes, including patent infringement, trademark infringement, copyright infringement, and trade secret disputes. He has prosecuted and defended virtually every type of commercial claim, including breach of contract, breach of fiduciary duty, corporate and partnership dissolution, fraud, securities fraud, negligent misrepresentation, unfair competition, tortious interference with contractual relations, and business defamation before courts and arbitration panels throughout the United States.

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