Can a Business Be Held Liable for Employees or Customers Who Allegedly Contracted COVID-19 (Coronavirus) While On Their Property?
A woman sneezes several times as she goes up and down the aisles to do her grocery shopping.
Across town, three people on the housekeeping crew at a hotel develop fevers while cleaning guest rooms.
At a restaurant nearby, the cook asks to leave in the middle of his shift because the cough he’s had for a few days is getting worse. A woman sitting at the bar sneezes several times and asks for her check when she suddenly feels lousy and gets the chills.
If any of these people later test positive for the COVID-19 coronavirus, they will have possibly exposed dozens if not hundreds of people to the highly contagious virus.
Could these businesses potentially be held liable for exposing others to the illness of their employees and customers?
Believe it or not, we are already seeing lawsuits as a result of COVID-19. In the last two weeks, two identical lawsuits were filed by passengers on the same ill-fated international cruise. The lawsuits, filed against Princess Cruise Lines, allege the company was aware that at least one passenger who travelled on their ship, the Grand Princess, on a trip earlier this year had displayed COVID-19 symptoms after disembarking and yet they still allowed the ship to sail with a new load of passengers. Eventually, twenty-one crew members and passengers would contract COVID-19 by the time disembarkations were allowed. At the time of writing of this blog, there are still crew members waiting to disembark the Grand Princess, while other crew members and passengers are still in quarantine, and yet lawsuits are already being filed by opportunistic plaintiffs firms. While we are a litigious society, and while businesses may still face lawsuits despite taking all necessary precautions, there are things that can be done now to protect your business from liability in the face of a lawsuit alleging negligence relative to COVID-19.
So as we stare down the legal ramifications of the current health crisis and see the litigation clouds looming in the distance, what is the standard of care for hospitality and retail businesses and what can be done to minimize one’s legal liability? The CDC offers some answers in the form of two resources for business: Interim Guidance for Businesses and Employers and Environmental Cleaning and Disinfection Recommendations (both linked below). These resources offer guidance on how businesses can provide the safest environment possible for employees and customers. Without a doubt, failure to follow these recommendations will serve as fertile ground for Plaintiffs. For example, the Interim Guidance recommends that employees who exhibit symptoms of acute respiratory illness be told not to come into work and be allowed to stay at home without providing a doctor’s note. If a manager in the restaurant scenario discussed earlier were to refuse the cook’s request to go home because corporate’s policy generally required a sick note that manager’s actions could open the business up to a negligence claim by any customer or employee infected by the cook.
The Princess Cruise Lines cases offer us our first glimpse of the types of lawsuits the hospitality industry will likely face as a result of COVID-19. In identical lawsuits the Plaintiffs make claims of gross negligence against the cruise line for allegedly knowing that a passenger on the previous voyage may have had the illness and failing to take proper measures to protect later passengers from the virus.
There are four main elements to a negligence claim: (1) the existence of a duty; (2) breach of that duty; (3) the breach caused harm; (4) the harm resulted in damages to the plaintiff. Unlike ordinary negligence, gross negligence requires a willful or reckless disregard to the standard of care required to meet one’s duty.
To protect themselves from claims of negligence or even gross negligence, customer facing businesses need to adhere to safety recommendations from state and local governments, including the CDC recommendations discussed herein, as much as possible. Preparedness and vigilance in responding to this crisis will not only save lives now but will leave your business standing on strong ground to defend itself against possible negligence claims.
As the introduction to the Coronavirus Litigation Blog states, it is our hope to provide our clients with useful and up to date information on how to deal with this crisis. This blog is only the first of what will be a continuous series aimed at providing you with fast and useful legal analysis. As the situation changes expect us to use this platform to answer questions from our clients across all practice groups as well as to provide you a fast and reliable source for updates on the ever-changing legal implications for businesses in light of COVID-19. Stay tuned.