Businesses in the Philadelphia area that are reopening over the next few weeks are going to face many challenges. But the biggest one of all will be safety. Operating a business safely in this new environment is not only the right thing to do, it’s also necessary if a business wants to avoid legal liabilities.
What kind of liabilities? Just think about it: An employee is healthy working from home and then — after returning to the office — tests positive for COVID-19. Or a customer claims to have been fine until eating at your restaurant and suddenly now has the coronavirus.
Of course, it could be difficult for a claimant to determine whether the cause was related to your business. But that won’t stop some people from suing, and many experts are expecting businesses to face significant exposure to lawsuits over the coming months. It’s possible that Congress may step in with legislation that limits the liabilities for companies, but there’s no guarantee that will happen — and there will still be financial exposure, which is why many small-business owners I know, and their lawyers, are already preparing.
“When it comes to workers’ compensation coverage of illnesses, employers can be liable for their employees’ injuries from ‘occupational diseases,’” says Michael L. Mauger, a labor lawyer based in Pottstown. “Generally speaking, an ‘occupational disease’ is one which an employee became exposed to ‘by reason of’ their employment.”
As a small-business owner, you can't eliminate the potential for liability. But you can take some steps to minimize it. Here are some suggestions.
For starters, make sure you’re legally allowed to open. Check both your state and county websites and determine that your business falls under the category of businesses that are allowed to resume operations. Jumping the gun and opening your business too soon will expose you to more headaches if a health incident occurs.
Mauger also says you should also consult the regulatory or licensing authority that oversees your industry. “Whether it’s the New Jersey or Pennsylvania Real Estate Commission, or the State Board of Cosmetology, these industry leaders have been in constant communication with their states’ Department of Health and their governors’ offices to stay as up-to-date as possible on not only their governor’s legal orders and directives, but also best practices for their specific industry,” he says.
Just as reopening too early may open your business up to enforcement action by local, county, and state authorities, reopening too early could subject you to discipline from your industry regulators, as well.
Next, assign a person in your company (ideally someone from human resources or personnel, but it can be any competent administrator or manager) to implement the necessary safety and health guidelines recommended by both the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration. These guidelines are being updated frequently, so someone will need to be checking on them regularly.
Also, make sure to talk to your insurance company. Read your policies and make sure you’re fully aware of what is and isn’t covered. Many good insurers are providing proactive advice for mitigating their customers’ exposure to health and safety issues. Ask whether they have any specific risk management practices that you can undertake. Take advantage of any training that the company provides, or third-party training even if it costs a few extra bucks.
Next is to implement. Mauger recommends developing a written reopening plan and even an employee-focused, infectious-disease risk mitigation manual that contains procedures for all your employees to follow for operating as safely as possible. This is something that you may want to do with a lawyer or an experienced human-resources consultant. Also, have a process for identifying and notifying management if an employee shows symptoms. “This should not only set yourself up to operate in such a way that mitigates your liability risk, but you are putting the onus on your employees to follow specific procedures, which will ultimately reduce your liability risk,” he says.
Finally and most important: Communicate. OSHA requires that notices be hung publicly for employees to understand their rights. But you should also be frequently communicating your actions to your workforce, over and above what’s required. Share with them developments that you feel are important for their well-being. Personally send emails or simply walk around the office and check in with your staff. Keep them informed and have an open door. By doing this, you’ll ease many concerns and ensure that your workforce knows that you’re doing everything possible to look after their safety.
Mauger also says that requiring your employees to sign release/waivers, although they are not ironclad, could help mitigate your liability. However, the validity and strength of such documents can be easily challenged in court and should not be done as a stand-alone risk-mitigation strategy.
As daunting as all this sounds, it shouldn’t stop business owners from moving forward and Mauger, for one, has a positive outlook. "Unfortunately, there’s no magic wand to minimize risk,” he said. “While business owners should absolutely make the necessary steps to mitigate their risks, they shouldn’t be paralyzed by their fears; they should be energized by what lies ahead.”