We live in uncertain times now as we wrestle with the implications of a global pandemic, economic shutdown and try to make sense out of conflicting claims and opinions. The shutdown and uncertainty of its length have caused instability and tension.
Businesses are reeling in the maelstrom. How do business owners cope in midst of this unprecedented storm?
We don’t have all the answers. It seems neither do the experts, yet. As with all storms, though, they eventually subside. The sun comes out, and the cleanup process begins.
In the meantime, business owners need to be smart and careful, even as we need to be proactive and find ways to generate revenue to stay afloat. As we do that, we need to take precautions not to expose ourselves to another liability that is lurking out there: a coronavirus lawsuit.
This was a Market Watch headline on May 11, 2020: ‘What we are confronting now is really unprecedented.’ Coronavirus-related lawsuits are about to flood the courts. The article identified “at least 917 federal and state lawsuits … filed in relation to the pandemic”.
The article reports health care and retail workers suing their bosses for unsafe conditions, college students and consumers suing for refunds, and other lawsuits. Managing your business includes identifying and minimizing potential liabilities to avoid claims.
As people clamor for “reopening” that state and local economies, businesses need to be mindful to the risks. Most business owners I know are anxious. The urgency to reopen is great, but it shouldn’t cloud our thinking.
Some business owners are threatening to reopen despite the current Executive Orders. Illinois Governor Pritzker issued an order this week with criminal repercussions for violations, and then rescinded it. Even if those executive orders carry no criminal penalties, a business owner takes on other serious liability by defying orders and recommendations of experts.
Business owners should consider the potential liability of defying an Executive order, failing to follow recommended practices or failing to take care in implementing them. Even if there is no risk of criminal charges or governmental enforcement, liability for failing follow a reasonable standard of care, including expert recommendation, is real.
The threat of liability comes from not just employees, but customers and clients. If you open your doors for business, you have a responsibility for the safety of your customers and clients. You also have a responsibility for the safety of your employees.
As a general proposition, people, including businesses, are expected to conduct themselves with due care and consideration to the well-being of others. When my negligence causes my neighbor harm, I may be liable to my neighbor for the harm that I have caused resulting from my negligence.
Negligence is, generally, a deviation from a standard of care. The standard of care that applies in a given situation is determined by all the facts and circumstances related to that situation. We have hundreds of years of case law that define the parameters of reasonable care and negligence.
The Coronavirus, of course, is a new virus, and it presents new risks to us that are somewhat uncertain, but its still a virus after all. We have experience with viruses, though most of them are not as deadly or communicable as COVID-19. In these things we would do well to follow the advice of the experts.
Even if you might not agree with the experts, the law, generally, relies on experts. In litigation, experts are used to establish the standard of care to be applies to a particular situation. Thus, the experts who are speaking to the COVID-19 threat are likely the ones courts would use to establish a standard of care in relation to the current threat.
If you are a business owner, you should consider carefully what the experts are saying, because that is likely the standard of care that might be applied to a claim made against you. You might be skeptical of what the experts say, yourself, but be assured that your opinion will not count when it comes resolving a claim in court. An expert’s opinion will determine your fate.
Experts, of course, often disagree. It seems that anyone will say about anything if they are getting paid to say it. The disagreement among competing experts, though, shouldn’t settle the matter for you.
You are a businessperson, and you should be making good business decisions. You should not be banking on your pet opinions and the experts who support them. You should know what the counter experts say, especially the ones who are being relied upon at the level of government, because those are likely the ones who will decide your fate.
Even if you have supreme confidence in the experts you trust, you don’t want to have to go to battle on the point of experts’ opinions. Litigation over experts’ opinions is some of the costliest litigation in the court system. Even if you win the battle, you may lose the war.
I am no expert in viruses or the measures that people should take to protect themselves and others from infection. The US Chamber of Commerce has issued a Small Business Reopening Guide that is very useful. Some practices will apply to all businesses across the board, regardless of type, but other practices need to be considered in light of the unique challenges and factors present in the specific business.
Now is the time to prepare. Even if already open for business, do your research. Listen to the experts that have consensus support. Implement policies and practices that follow the best practices recommended by the experts. Write them down. Communicate them to your employees. Make sure they are followed.
Nothing would be worse for a business owner who weathers the storm, making the necessary business adjustments to be successful, to be put out of business for failing to assess the risk and avoid the liability inherent in the coronavirus threat. In your urgency to be open, don’t fail to follow expert advice to protect your employees and your patrons from that risk.
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