Can A Business Be Liable For Contagion?
Brian O Sutter
Premises Liability
The United States is now entering a “heavy” phase of the global pandemic known as COVID-19. COVID-19 is a “novel virus,” which means that it is new to the human species, and, as a result of having never encountered it before, we currently have no immunity to it. Because of this, the virus is spreading rapidly throughout the world, and Florida is no exception. In some ways, Florida is more acutely vulnerable to the effects of COVID-19 than many other states due to our higher population of the elderly.The COVID-19 virus is more harmful to people over the age of 50, even more so if those people have underlying or pre-existing medical concerns, such as a heart condition or respiratory illness. It is very contagious and can be passed through physical contact, or “aerosol” transmission, such as particles in the air from coughing.
This is why, if you run a business, you should start thinking long term liability instead of short term profit.
The Premises Liability Threat
Any business that allows the general public, such as clients and customers, to enter the property has a legal responsibility known as premises liability. This means that depending on the type of business you run, you, as a business owner, or the managers you hired, have a duty to ensure reasonably safe precautions for the environment based on the type of business you have.
So in the case of a restaurant, part of the premises liability responsibility is to ensure the food served uses safe ingredients that are not rotting or contaminated, leading to food poisoned diners. For a skydiving service, this may mean inspecting each parachute for safety and structural integrity and repeatedly checking the packing of each parachute and proper harnessing on skydivers before going up.
If a business owner or manager sees a problem but decides not to address it, and that decision results in an injury, this is when premises liability occurs. An issue was seen, but rather than address it, a deliberate choice was made to ignore a potentially harmful situation, and hard did occur as a result.
In legal terms, this is known as negligence. An act that is legally considered negligence is a breach of premises liability, and the business owner can be held both legally and financially responsible for the injuries that occurred.
The COVID-19 Factor
In the case of illness, this is a primary responsibility that all business owners, not just people in the food & beverage industry, must adhere to. Some business people are tempted to get as much work from their employees as possible, threatening dismissal if employees don’t show up to work even when sick. As a result, it’s quite normal for American employees to arrive at work ill, and spend the day working because management is more concerned with adhering to a work quota than the recovery of the employee.
This mindset, however, is now a direct threat to customers. If an employee is a “frontline worker” that interacts directly with customers, then insisting that an employee arrives for work, even if the employee makes claims of illness, could backfire. If that employee shows up, as requested, sick, despite having COVID-19, and then makes a customer sick with COVID-19, this is a clear case of negligence. If the decision to demand a worker arrive, knowing full well that the worker is ill and not caring can be proven in court, through a recorded phone call, for example, or eyewitness accounts from other employees where a manager orders an employee to work while sick, the customer that got infected can take this evidence and go to court.
Think Long Term
As tempting as it may be to try to get as much productivity out of workers as possible, don’t let short term gain threaten your long term liability. A sick worker, especially during an epidemic, can get your customers, clients, other employees, and even you sick. If that employee makes a customer ill and can provide evidence that they were knowingly ordered to work despite your acknowledgment of the illness, this could be very bad legally, especially if a death results from the infection.
If you’d like to know more about premises liability for illness, or slips and falls, talk to an experienced attorney.