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Mitigating Litigation Risk For Businesses Reopening In The Near Future
As employees return to work, businesses are faced with an altered work environment, one of social distancing, reduced contact, and greater health risks.
There is no dearth of potential litigation risks after the pandemic, and smart business managers are quickly gearing up for any eventuality.
As customers head back to their favorite outlets, they will undoubtedly find themselves in situations where social distancing and mask-wearing protocols aren’t being followed. These are viable grounds for them to sue those establishments.
The U.S Chamber of Commerce listed several risks in their letter to Congress, dated April 13th . Along with the U.S Congress, the Massachusetts state legislature has addressed the risks involved with pandemic and the need to maintain safe working conditions along with social distancing protocols in the workplace.
But as employees return to the workplace, they must ensure that health guidelines are followed and safeguard themselves against potential litigation risks in the “new normal.” Business owners have an affirmative duty to use ordinary care to prevent any injury to their customers and employees, to protect them from risks. Failure to abide by this can make businesses liable. Inadequate care in imposing social distancing rules, keeping at work possibly exposed staff, not sanitizing their establishments regularly can put business owners at risk of litigation, not to mention exposure to the virus.
A typical litigation suit in this scenario would present itself as a case of negligence. The injured party would claim that the business owner or establishment was aware of the presence of the virus but failed to take adequate care in restricting it and alerting customers. As establishments open up and interactions increase, infections will inevitably increase.
However, establishments can take some steps to mitigate the risk of potential lawsuits related to a COVID-19 injury.
Mitigating Litigation Risks From The Public
The federal and state governments are working overtime to ensure that the public is equipped to deal with the pandemic as the economy slowly opens up. State officials are closely monitoring the situation on ground. Businesses must follow the established guidelines and keep an eye for updates and changes to the policies and protocols and modify their operations accordingly.
As the knowledge of the virus is evolving, state and federal authorities are adapting their guidelines. Congress is discussing legislation that would provide businesses a shield from liability, given they complied with the Centers for Disease Control and Prevention guidelines, among other protocols and preventive measures.
While the authorities mull over legislation about safeguarding businesses from liability risks, business owners can do their part in documenting the preventive measures that they have taken. Documenting evidence of compliance with safety protocols can go a long way in allowing you to respond and negate any accusations. You can also reach out to local health authorities for help and guidance if you or someone in your staff has been potentially exposed to the virus. It is a good idea to keep in touch with healthcare experts and bring them on board to monitor your organization’s strategy in coping with the pandemic.
Businesses must not only ensure protection for customers but also their staff and employees. Keeping employees safe from potential exposure only translates into better safety for your business establishment and mitigates the risk of potential COVID-19 lawsuits. After all, the virus victimizes patrons and staff equally. It is important to be transparent when dealing with health officials and the public. Trying to cover up any perceived violation of guidelines will only lead to more complications for your business establishment.
In the unfortunate event where one of your employees or customers contracts the virus on the premises, always opt for full disclosure about the existence of the case and your safety measures. Attempting to cover up the matter will not help you but create more issues for you.
Lastly, review the guidelines and resources for different businesses provided by the Occupational Safety and Health Administration (OSHA) pertaining to the pandemic. These guidelines clearly specify the workplace requirements, including the protective equipment to be worn at the workplace, such as facemask, medical-grade masks, and personal protective equipment (PPE).
Liability Concerns Within The Business
Businesses may choose to use certain criteria like age and prevailing health conditions to draft their back-to-work list of employees. But employing such restrictions put employers at risk of discrimination lawsuits from existing employees. Conversely, calling back employees predisposed to a higher risk of catching the virus can also put employers under scrutiny and potential lawsuits. Without specific legislation regarding this matter, employers must skirt around the issue carefully. They must employ health-specific criteria when choosing which employees to call back.
Another overlooked liability risk for businesses during the pandemic is compromising on employee privacy. Employers may want to inquire access to their employees’ medical records before calling them for work and keeping themselves updated about existing employees. The Health Insurance Portability and Accountability Act (HIPAA) serves to protect the medical information of individuals.
Organizations laying off employees due to lockdowns could also put them at risk of litigation on wrongful termination and dismissals. Worker laws require strict advance notice before laying off employees, and it can be hard to abide by these regulations during a lockdown or a sudden case of infection within the workplace.
Legislation covering pandemics and public health emergencies can often be found lacking, and drafting specific jurisdiction to mitigate liability risks can be challenging for authorities. In lockstep with federal authorities looking to protect businesses from liability risks, Massachusetts state authorities are also looking to address these concerns through their own legislation.
In the unfortunate event where your customers or employees get infected with the virus and claim that they were exposed to it through your business, it can be an extensive and costly process to fight the allegation.
Proceed with the utmost care while reopening your business. Contact the Law Offices of Richard Mucci should you have any legal issue you would like to discuss.