Coronavirus and the Law: Is there a Legal Duty to Prevent Harm during a Pandemic?

It’s no doubt that the novel coronavirus (COVID-19) has introduced a high level of panic for local businesses, especially with many big companies facing large-scale work force consequences due to the presences of the disease. Many smaller companies might ask: what responsibility do I have? Are there any legal liabilities if COVID-19 spreads throughout their workplace and employees or customers contract the virus? The answer is maybe. When it comes to the ways in which they may be able to counteract the effects of the virus to their own business, they may want to consider coronavirus small business financial assistance which can be applied for online.

Employers obviously have standard duties to provide safe and healthy work places under the Occupational Safety and Health Act (OSHA) and may even have similar duties under the National Labor Relations Act (NLRA).  In addition, an employer has a legal duty under negligence law to act as a reasonably prudent person to prevent harm.  Therefore, if the employer fails to act diligently in the wake of an obvious threat to its employees and the public in general, it could be open to liability. We have some guidelines as to what is reasonable under the current circumstances.   

According to the King County Department of Public Health, there are many steps that a business can take in order to mitigate risks. Following these guidelines may help employers avoid liability under negligence law and show good faith efforts to protect its employees and customers.

  1. Be proactive in forming a plan: Businesses should work to formulate and implement well thought out plans in order to guide themselves in a proactive way rather than be reactive in situations such as this. This includes determining key areas and positions that are necessary for business operations to continue; identifying exposure risks throughout the company including areas with higher face-to-face contact, areas exposed to healthcare services, and areas that handle materials at risk for contamination (such as money); and reviewing workplace policies for matters such as sick leave, human resource responsiveness, and compliance with OSHA, Family Medical Leave Act, workers compensation, NLRA, and general public health requirements and recommendations.
  2. Be flexible in implementing the plan: A key principle in implementing a plan to mitigate the risks of a pandemic is flexibility. A company should set up, to the degree that it can, modes and methods for employees to work remotely and for clients to interact with the company remotely. The company should also prepare for employees to get sick and be absent. This preparation would include protocols for when an employee shows up to work sick or gets sick at work and finding the best way to separate them from the rest of the work force while they recover. Companies should also be sure to cross-train employees to perform more than one position and be able to step in at a moment’s notice in order to accomplish tasks on time. A company should also work flexibly with its employees in order to provide them resources that they need to remain healthy such as enough hygiene products around the office to wash hands thoroughly and consistently and education on how to prepare at home for the disease’s spread.
  3. Be collaborative in executing the plan: The most important part of any plan is its execution, and you can’t execute this plan alone. Involve your entire team in the key moments of the plan to achieve a successful execution. You should establish a communication protocol to communicate relevant information so everyone stays up to date. Also establish an execution protocol that encompasses triggering events, milestone markers, and cutoff triggers. Finally, you should always stay informed about the latest updates in the spread of the disease and reach out to your full team for input on plan execution and adjust accordingly to achieve maximum benefit for you and your employees. Furthermore, always be sure to police against discrimination and confidentiality violations in your efforts to mitigate a disease’s spread.

Much of this information was adapted from a guide produced by the King County Department of Public Health which itself was adapted from guidelines produced by the Center for Disease Control. The guide can be found by following this link.

Every employer’s situation is different and unique, and so careful thought should be put into a plan of action.  What we do know is that the more a business is prepared for the unexpected, the more safe and successful it will be for itself and for its employees, and the liability risk is lowered. 

If you have questions about this article or have any other questions about planning for unexpected events, feel free to reach out: contact@apexlg.com

The above article is for general information purposes only and should not be relied upon as specific legal advice.  This article, or using the contact@apexlg.com form, does not in any way form an attorney-client relationship.  If you have any questions or would like to learn more, please contact Jacob Ferrari at jacob@apexlg.com

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