How Premises Owners Can Maximize Safety and Limit Liability during COVID-19

As spring gives way to summer and states and localities have begun lifting their COVID-19-related stay at home orders, business owners around the country are reopening to a very different environment than the one they last operated in. Many consumers are continuing to be cautious about returning to business-as-usual, and the risk of COVID-19 infection still remains. These unusual circumstances raise two important questions: How can a premises owner maximize safety for their customers? And how they can do so while limiting their own liability for infections that cannot be reasonably prevented?

The answers to both of these questions are to implement strict policies to reduce the risk of transmission between individuals on their premises, post clear notices reminding invitees about the risks and necessary precautions, and in some cases, utilizing liability waivers as an extra layer of defense.

Policies

Due to the nature of infectious disease, a premises owner’s responsibility to limit infection begins even before anyone comes onto the premises. Specifically, premises owners should have strict policies in place prohibiting entry to individuals who have COVID-19 symptoms or may have come into contact with someone diagnosed with COVID-19. An example of such policy is to prohibit entry to individuals who:

have felt feverish or had a measured temperature of 100.4 degrees Fahrenheit or greater within the past 72 hours;
have had a persistent cough or trouble breathing within the past 72 hours;
have come into contact with an individual who has either been diagnosed with or suspected by a healthcare professional to have COVID-19 within the past 14 days; or
have been advised by a healthcare professional to self-isolate due to concerns of spreading COVID-19 within the past 14 days.

As for inside the premises, reasonable policies include:

requiring employees and invitees to wash or sanitize their hands upon entry and after using the restroom, sneezing, or coughing;
requiring individuals to wear a medical or cloth face mask; and
requiring everyone to maintain a distance of a minimum of six feet from other individuals.

If technology permits, providing periodic reminders of these policies over an announcement system is also encouraged. In addition, premises owners should enact detailed disinfecting policies to ensure heavily trafficked areas and routinely touched surfaces are clean. Depending on the size and nature of the premises, an owner may even want to enact more sweeping measures, such as requiring temperature checks before entry or limiting the premises’ maximum capacity to facilitate social distancing.

As with all policies, it is important that companies take efforts to document these COVID-19 policies when they are enacted and ensure that they are being properly enforced. A policy that is not enforced is no better than not having a policy at all, and it will offer no protection to either visitors or the premises owner.

Notices

In addition to the policies discussed above, prominently placed notices can help premises owners avoid liability for the possible spread of COVID-19 by informing visitors of the possibility of infection and the precautions they should be taking. An effective notice will succinctly communicate the possibility to contract COVID-19 in any public setting and will explain the steps the premises owner is taking to help mitigate infection.

Notices should highlight the general dangers of COVID-19, particularly for those over the age of 65 and those with compromised immune systems, high blood pressure, chronic heart or lung conditions, and/or other underlying health conditions, as these individuals may be more susceptible to developing severe symptoms. Notices should also outline the common symptoms of COVID-19 and state that individuals who have these symptoms or recently came into contact with another individual with these symptoms are not permitted to enter the premises. While much of the information in these notices may be viewed as common knowledge at this point, premises owners should not assume that all visitors are equally well-informed.

In addition, premises owners are encouraged to seek out supplementary documents and print resources from the Center for Disease Control and Prevention. The CDC has produced a number of helpful posters and pamphlets that can be posted to periodically remind invitees to take extra precautions to prevent the spread of infection.

Liability waivers

Lastly, premises owners may be able to limit their liability for COVID-19 infection by having invitees sign liability waivers upon entry. It goes without saying that waivers do not make sense for every business, but they add an extra layer of defense to business wherein individuals are likely to have close contact (for example, gyms and hair salons). While COVID-19 liability waivers are generally untested in court at this early stage and their scope and enforceability vary greatly from state to state, they will force individuals coming onto the premises to address the possibility of contracting COVID-19 and may dissuade them from bringing a negligence claim if they subsequently become infected. These waivers should cover all the same information as the notices discussed above and should clearly state that the signor acknowledges the risks of contracting COVID-19 and knowingly discharges the premises owner of liability if they later contract the virus.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

CONTACT ATTORNEY LOGAN S. KRAUS

Logan S. Kraus
Associate Attorney, West Des Moines
1501 42nd St., Suite 465, West Des Moines, IA 50266
P: (515) 453-8509 / F: (515) 267-1408
E: logan.kraus@mwhlawgroup.com