Covid-19 and Business Liability – Navigating the Legal Issues

Covid-19 has challenged the world in many ways, including by producing uncertainty, fear, and doubt about what potential liabilities may arise. Many small business owners are left guessing about their legal obligations, with few having the ability to hire expert help for advice.

While we cannot address all of the potential items to be aware of, we do want to highlight some helpful legal principles that apply in a legal system similar to that in the United States. Some commonly asked questions include:

1. What should I do as a business owner?

Our recommendation (from a legal liability perspective) is to follow the government’s requirements and not add additional measures unless it is common in the community to do so. Some businesses take on the responsibility of policing their patrons, stating that employees can ‘safely’ return to work, or otherwise taking additional precautions.

From a legal perspective, some additional measures may actually open a business up to more potential liability. For example, schools, churches, and businesses often state that they have ‘safely’ reopened or that people can ‘safely’ return. To our knowledge, in most jurisdictions, it is not legally required to state that people can ‘safely’ return. Yet, when a business advertises this way, it is setting a standard for itself to meet. If a business advertises that it is ‘safe’ to go there, they may just be held to that standard.

Of course, some businesses may need to state that it is ‘safe’ to be there to get customers back. If that is a business’s situation, the business can weigh the pros and cons of advertising that. However, if you do not need to use the word ‘safe’ in your advertising or communications, we do not see, from a legal perspective, why businesses would voluntarily take on this additional obligation as it is impossible to guaranty safety against a virus, especially when customers and employees are so hard to control. In short, do what is required, but be careful of taking on roles you do not need to.

2. How do I find the applicable rules or laws for my business to follow?

The law rarely makes anything easy, and finding the applicable rules and laws is no different. While the locations of laws and rules vary extensively in each jurisdiction, here are some basic rules of thumb:

· The Country – Each country often has Covid-19 laws to follow. Most countries will run these laws and rules through agencies or departments. The first place to start is with your country’s health department or disease control center. Other national agencies to check are labor/employment commissions, housing commissions, or business oversight commissions, as each of these may have passed Covid-19 related rules. Sometimes, the agencies issue recommendations, other times they issue mandates or laws. If in doubt between a recommendation and a mandate/law, the safe thing is to assume that they are all required (while acting accordingly) until you know otherwise.

· States – Countries usually divide into smaller jurisdictions, and each state, or each jurisdiction, often gets to set its own rules. Check the jurisdiction for the same information from health departments, labor/employment, housing, etc. Some states in the United States have created one particular webpage to access all state-specific regulations. Other states are more difficult to track down all information in.

Also, be sure to check the executive’s webpage (such as the Governor), as most executives in America have issued executive orders that also apply.

· Counties/Cities – Usually cities will also have rules and mandates in place, as well as counties. At this level, it is usually important, in addition to the above agencies, to also check with the agencies that issue any business or professional license as industry specific rules may apply as well.

· Private Organizations – Often, private organizations aggregate information and offer compliance assistance. Sometimes, these organizations will provide free information, or at least links to various regulators. Other times they charge for assistance, but still may have helpful links on their webpage. You can search your country with ‘coronavirus compliance’ to see what types of organizations have aggregated information.

In short, it may often be best to find a provider who can assist you in finding the applicable regulations, or you need to set aside a few hours to go through the various levels of government while checking the multiple agencies/departments at each level.

3. What to do if a patron will not wear a mask?

Mask mandates are extremely common. Some jurisdictions require that businesses actively enforce these mandates, while others do not. Even if the law does not expressly require that the mandate be enforced by a business, laws related to negligence may still create liability if the mandate is not enforced well. In other words, if the patrons do not wear masks, and someone gets sick, a business may be sued under a theory of being negligent and not exercising due caution.

Of course, it can be extremely difficult to enforce mask mandates in all situations. While there is no perfect answer for how to address the situation, here are a few principles:

· Talk to the person civilly and respectfully. Ask them what concerns they have with the mask. Offer them a mask.

· Explain that you understand their resistance, but that your business can get in trouble if masks are not worn. Have a small coupon ready to give them to show that you appreciate them if they put the mask on.

· Make a judgment of the potential risks. If there are very few patrons in your location, it may not be worth an aggravated confrontation. If there are a number of patrons in a close area (like a waiting room), it may be necessary to ask the person to leave rather than risk other patrons complaining to the local health department.

· Don’t forcibly remove people unless you have a legal and safe way to do so. If someone absolutely refuses to wear a mask and others are uncomfortable, offer your other patrons (such as those in a waiting room) a coupon to come back at a later time if they do not want to be in the same place as someone without a mask.

· Document interactions. Recording notes about efforts is valuable to show that you were trying. Having proof of attempts to comply are very valuable if someone claims you were negligent. Record what requests you made, when you spoke with the person, customer or employee refusals to cooperate, requests made that were followed, etc.

· Expect managers to be an example. Managers set the tone for how lax people can get with masks. If your leadership is not following the rules, it will be hard to get others to as well.

· If an employee refuses to wear a mask, try to arrange for them to work from home if possible or in an area where they do not interact with others. If that is not possible, explain why it is required, and if they still do not comply, then placing them on leave or terminating their employment may be necessary. If your jurisdiction has strict labor and employment laws, unions, or the like, it may be necessary to discuss this step with an attorney.

4. What do I do if someone claims to be medically exempt?

Many jurisdictions specifically allow for individuals with medical reasons to not wear a mask. Despite this, many businesses will not recognize a medical exemption and will not allow individuals without a mask to enter.

The law is still evolving on how far the medical exemption will go and what must be shown to claim the exemption. Answers to this question will vary widely jurisdiction by jurisdiction. However, a few helpful tips generally include:

· Don’t ask about a specific health reason. Many jurisdictions have health privacy laws, so even if a person is seeing you for health reasons, the laws may still apply and you should not ask them what specific condition they have unless they are seeking treatment for it.

· Ask the individual for proof of a medical exemption. An individual could provide you with a letter from his/her doctor, or could sign a statement similar to the one below (it is important to check if this is allowed in your jurisdiction, and adjust it as necessary). Having proof of an individual claiming an exemption is an important item to have if your actions are reviewed at any point.

Medical Exemption Declaration - Example
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· If you schedule appointments with clients, ask them ahead of time if they are able to wear a mask when they come for the appointment. If they tell you then that they are medically exempt, email them the statement for them to fill out and bring with them, and schedule them at a time when others will not be in the office. Ensure that your staff members know someone will come without a mask. If a staff member is uncomfortable with that, be sure to allow them to not be present when the client is at the office.

5. Can I be sued if someone gets sick? The short answer is yes, you can usually be sued for almost any reason. That does not mean you will be found guilty or liable though, as it is difficult to prove where a person really got sick. Causation (or proving that you were the reason they got sick) is often very difficult to prove. However, even if the law in your jurisdiction does not support making you liable if someone else is sick, you may have to wade through a lawsuit and pay attorney’s fees to defend yourself. Most lawsuits target larger companies though, so hopefully this does not become a large issue for small businesses.

6. Do I have constitutional rights to not follow Covid-19 mandates?

The simple answer is – don’t count on it. While some constitutional challenges have been successful, and there will likely be more that are successful as well, most claims to constitutional rights are misguided and will not be held up in court. Before you decide that you want to challenge any mandates or restrictions, be sure to talk with a qualified constitutional attorney first. Many of them will review your situation for free, especially if you locate a firm that specializes in such cases. It is better to talk with one first before deciding on your own that you have rights that may not be recognized in court so that you can avoid unnecessary liability.

7. Are waivers effective? To be honest, it remains to be seen. Some businesses have patrons sign a waiver acknowledging Covid-19 risks and have the patron accept responsibility for getting sick. If your jurisdiction does not ban such a waiver, then having one may be helpful for a time, especially in close contact scenarios such as with health procedures. As discussed in point 1 above, it is helpful to let your clients know that there is risk of contracting Covid-19 if they receive services from you (you do not want to guaranty safety in health procedure scenarios). While it is yet to be seen how effective these waivers are, they should at least help guard against claims that you promised or advertised a safe environment. For an example of a generic Covid-19 waiver in Word format, please see the link below (and be sure to adjust based on your jurisdiction's specific requirements).

Covid-19 Waiver - Example

If you have additional questions, feel free to reach out to us at 801-550-7620 or through this website. At Believe, we are committed to changing the world, for good. While this article was prepared by an attorney licensed in Utah and California, it is not legal advice for your situation (regardless of the state you are in) and should not be relied on as such. No attorney-client relationship has been created. This article is informational only and does not list all items that may be applicable to your situation. Covid-19 items change frequently, so hiring an attorney or compliance specialist may be necessary. While we are not licensed in all states (and thus cannot provide legal advice in all states), we are happy to discuss general informational items with you and see if there are ways to connect you to the additional information you may need. We work hard to support the believer and small business community as we are able.

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