Running a Business During the COVID-19 Pandemic: Do Different “Limitations of Liability” Protect Your Business?

Businesses of all types have some weighty legal issues to wrestle with in the era of the COVID-19 pandemic. Among them are questions regarding the liability of a business to protect workers, customers or clients, vendors, and others from the coronavirus when these individuals are on their premises. As an outgrowth of legal responsibility considerations, you understandably may wonder whether and how you might go about limiting the liability of your business in regard to coronavirus exposure. 

In this regard, there are a number of strategies historically used by businesses of different types in an effort to attempt to limit liability if a person became injured or ill at a company’s base of operations. In addition, there are some strategies that are more unique to addressing matters like liability associated with workers, customers or clients, vendors, and others becoming infecting with COVID-19 as a result of a contaminated business space. These include:

• Notification of limitation of liability
• Liability waiver
• Professional coronavirus cleaning and disinfection
• Follow CDC guidelines

How We Ended Up… Where We Are

As people celebrated the 2020 new year, no one expected that by springtime the U.S. economy largely would be shut down and a primary focus of life in the new decade would be developing tactics to avoid infection by a highly contagious disease (COVID-19) that no one had heard of only a matter of weeks earlier. What was considered normal day to day life in Southern California and across the country – indeed, around much of the world – was upended like nothing most people had seen in their lifetimes. 

The year rather slowly went onward until we reached the juncture that planning began to occur regarding some movement away from strict stay at home directives and widespread business closures. If you are a small business owner that has significant restrictions placed on your operations, if you were able to stay open at all, you likely experience a broad range of emotions when contemplating the eventual easing of restrictions on your enterprise. Certainly, you were relieved if not downright happy at the prospect. However, like your fellow business owners across the state, you likely also find yourself concerned, confused, and with more questions about what the proverbial “new normal” will be like. 

General Legal Duty of a Business to Workers, Customers or Clients, Vendors, and Others

The fundamental legal duty a business has to keep its workers, customers or clients, vendors, and others safe is to take those reasonable steps to reasonably protect the health and wellbeing of people on the premises. The “reasonable” analysis involves a consideration of what a similarly situated business would do in a particular situation experienced by a particular store, office, restaurant, or other establishment or enterprise. For example, one reasonable step a business can take to keep people reasonably safe is to promptly seek professional COVID-19 cleaning and disinfection if there is evidence that a location has been exposed to the novel coronavirus. 

Notification of Limitation of Liability

As businesses beyond those considered “essential” start to open their doors, we will all see a growing number of “enter at your own risk” types of signs posted on doors into stores, buildings, and so forth. These warning placards are likely to say something to the effect of during the COVID-19 pandemic, people who enter these premises are doing so at their own risk. The business will contend on such a posted advisement that it has no responsibility for a person entering the property who becomes infected with COVID-19 as a result and then becomes sick of even dies.

The legal reality is that such a warning and disclaimer of liability will be worth less than the paper it’s printed. The bottom line is that as a general rule a business cannot absolve itself of its fundamental legal responsibility to take reasonable steps to keep its real-world venue reasonably safe for workers, patrons, vendors, and so forth. 

There used to be a legal doctrine known as assumption of liability, a principle that did give disclaimers like these at least some force and effect. Assumption of liability meant that a person entering into a particular business essentially was absolving that enterprise of responsibility should that individual become sick or injured by being at the premises. 

Assumption of liability has largely ended up in the legal dustbin of history. It has largely been replaced by another legal principle known as comparative negligence. This is also known as comparative fault or comparative liability. 

In simple terms, if a person elects to enter a store during the COVID-19 pandemic, that individual may be said to share some of the risk that he or she might become ill as a result of becoming infected with coronavirus while in the premises. If the merchant or other type of business failed to take reasonable steps to protect against COVID-19 contamination in the premises, the business would also be deemed to share in the responsibility. 

In California, comparative negligence means that a business might be 100% at fault for an injury or not at fault at all, with 100 percent of the “blame” for an injury or illness resting with the patron. On the other hand, if a lawsuit arose out of a COVID-19 illness contracted at a place of business, a jury might find that the business was 80 percent at fault while the patron was 20 percent at fault (perhaps for entering a nonessential business at the relative peak of the COVID-19 pandemic). If a jury awarded a judgment of $100,000 for a person’s illness or injury, that judgment would be reduced by 20 percent, of the level of fault attributed to the patron. 

California is known as a “pure comparative negligence” state. What that means is that even if a store patron is found to be more than 50 percent at fault of contracting COVID-19 while in a particular business location, he or she technically would be entitled to compensation in an amount proportional to the percentage of fault the business was deemed to have contributed to the situation. 

Liability Waiver

A more focused attempt by a business to limit its responsibility to a patron for the potential risk of exposure to COVID-19 is having a customer or client sign a more detailed waiver before entering an establishment. A business cannot sign away its legal obligation to engage in reasonably safe practices regarding COVID-19, including taking reasonable steps to prevent and to rapidly remediate coronavirus contamination in the premises. 

With that said, when the day comes that “riskier” businesses like body art services and perhaps even hair salons begin to open (as they started to do in some states at the end of April 2020), there may be some value to a business in having patrons sign a detailed waiver acknowledging the risk they are taking by engaging a service like obtaining a tattoo during the COVID-19 pandemic. 

Yes, a business will still need to adhere to reasonable safety practices to prevent COVID-19 contamination in its premises. No, a business cannot thoroughly absolve itself of liability if it fails to undertake reasonable efforts to prevent or eradicate COVID-19 at the premises. But, applying the California rule regarding comparative negligence, such a signed waiver can prove to be helpful evidence that a patron knew of the potential COVID-19 risk and at least acknowledged that by engaging a service like tattooing, he or she potentially was exposing his or her self to the risk of a COVID-19 infection.

It’s vital to stress two points even if a business elects to attempt to utilize a signed waiver in advance of engaging with customers or clients:

1. A business needs to take reasonable steps to reasonably protect against COVID-19 contamination in its premises. In many cases, at this time and into the foreseeable future, these reasonable steps are likely to include professional coronavirus cleaning and disinfection. 
2. A business needs to be certain to follow recommended COVID-19 safety guidelines as promulgated by the U.S. Centers for Disease Control and Prevention (CDC) or some other appropriate agency or even professional or trade organization. In the end, if there is a conflict between CDC recommendations and those of a professional or trade association, unless the association has more stringent guidelines, a business needs to use those set forth by the CDC to ensure that it is taking reasonable steps to protect workers, patrons, and others. 

Professional Coronavirus Cleaning and Disinfection

Establishing what are reasonable practices to protect against dangerous COVID-19 contamination as well as to promptly remediate a suspected coronavirus contamination at a business is in something of a state of uncertainty. Indeed, in the final analysis, more concrete legal parameters will only be realized after litigation and cases brought before appellate courts, something which is far down the road.

Today, businesses of all types need to maneuver through considerations of what are reasonable practices in keeping their establishments reasonably safe from COVID-19 contamination that threatens the health and welfare of workers, customers or clients, vendors, and others. This we do know:

Businesses should be vigilant in undertaking their own internal ongoing cleaning and sanitization practices throughout the course of the day. 

Businesses need to seriously take a look at the importance of developing a comprehensive COVID-19 contamination prevention plan in conjunction with an experienced coronavirus cleaning and disinfection company. 

Businesses need to initiate an immediate response if COVID-19 contamination is suspected to have occurred at its premises. For example, if a worker is diagnosed with a COVID-infection, a reasonable practice of business would be to initiate immediate remediation from a reputable coronavirus cleaning and disinfection company. 

Follow CDC Guidelines

Finally, when running a business during the COVID-19 pandemic era, attention must be paid to recommendations and directives issued by the U.S. Centers for Disease Control and Prevention regarding coronavirus infection and contamination issues. Comprehensive information, including daily updates, are available at this CDC Portal. 

In conclusion, we close with a quotation from former President John F. Kennedy:

“We are not here to curse the darkness, but to light the candle that can guide us thru that darkness to a safe and sane future.”