Small business owners reopening during the coronavirus pandemic face an array of business liability issues. If you're a small business owner, reopening your business during this crucial but delicate time likely feels fraught with potential risks. And with some businesses already closing down after recently reopening because of new COVID-19 infections among their customers and employees, it's clear that these fears and worries are not unfounded.
Because the main risks of reopening are liability-related, customer and employee safety issues become paramount. It's important to understand the kinds of liabilities you face and how you can best protect your staff and customers.
What is your liability to employees?
Many small business owners view their employees akin to family. You care about the people who work for you, and it's important to you that they stay safe as your business reopens. Your employees will undoubtedly be looking to you for leadership, so it's important that you help them navigate this challenging time.
Follow safety guidelines
"Small businesses must do whatever they can to protect their employees from COVID-19," says Robert Bird, a professor of business law and the Eversource Energy Chair in Business Ethics at the University of Connecticut. "That, at a minimum, means following CDC safety guidelines regarding COVID-19 and reviewing safety recommendations in their particular state and local jurisdictions."
Thomas Nowland, attorney and founder of Nowland Law, agrees, noting that business owners should follow these guidelines as closely as they can. "Many of these health organizations have now published detailed reference sheets and workbooks to guide businesses in operating as safely as possible," he says. "If you can show a court that you followed all of the recommended guidelines, that should go a long way toward showing that you were not negligent."
Reduce employees' exposure to infection
What then is the best way to reduce your employees' exposure to the coronavirus while they're on the job? Nowland suggests that this is a good time to pursue remote work for employees where such an option is feasible. And if you have staff that must be physically present onsite, that's where adherence to the safety guidelines mentioned above comes into play.
Bird puts it succinctly: "Stay abreast of the latest safety standards regarding COVID-19," he says. "Be proactive. Don't wait for your employees to complain that they feel unsafe." He also suggests keeping up with the latest applicable COVID-19 legal rules facing your business. One way to do this is through the Equal Employment Opportunity Commission website, which has detailed information on what employers need to do.
Prepare for discrimination lawsuits
Attorney Valerie K. Ferrier, the head of Martin Clearwater & Bell's Labor & Employment Practice Group, notes that employment lawyers expect to see an increase in occupational health and safety complaints arising from alleged unsafe working conditions brought on by COVID-19. But she also points to another potential source of liability.
"Employees who lose their jobs because they are afraid to return to work may file discrimination lawsuits," she says. "Now is the time for employers to get their paperwork in order. Businesses should ensure that their time-keeping, record-keeping, and pay practices comply with the law before they reopen."
Additionally, she recommends that employers who do not already have employment practices liability insurance explore such coverage, as this type of liability insurance can protect against wrongful discharge, discrimination, and retaliation claims.
What is your liability to customers?
While your employees feel like family, your customers and clients are the lifeblood of your small business in many respects. And by keeping your employees safe, you're also taking the necessary steps to reduce the likelihood that your customers will be exposed to COVID-19 as a result of frequenting your establishment.
"Small businesses understandably want to reopen as soon as possible," says Bird. "However, their responsibility to their customers to have a safe business environment remains. What exactly these responsibilities are, are still unclear because of the unprecedented environment of COVID-19. Because of this, firms should take all reasonable precautions to ensure that customers are not exposed to COVID-19 while interacting with the business."
From a legal perspective, customer lawsuits are definitely a potential reality. As Ferrier notes, "Customers may try to lay liability at the door of a company if they become sick after patronizing the business."
To protect yourself from customer lawsuits, she suggests that businesses comply with all federal, state, and local health and safety requirements and best practices, as well as post a notice of compliance to put customers at ease.
Nowland points out that, as the courts have begun opening up again after being closed during the first months of the pandemic, attorneys are already seeing a number of COVID-19 related lawsuits. "There is currently a battle being fought in Congress on whether or not to add provisions to the next 'stimulus bill' that would absolve employers of any liability," he notes. "The outcome of that will determine if you see federal lawsuits on this topic. However, any state may pass their own laws. Until they do, I would rely on existing employment law for the state you are in for additional guidance."
When it comes to liability issues, reopening during the coronavirus pandemic puts many small businesses at risk. But a business can't survive without some form of reopening. Navigating such risks during the pandemic requires that business owners make both employee and consumer safety a top priority.
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