Key to Reopening—Liability Protection

As businesses throughout the state start to reopen, there is a looming question as to whether it is safe. Consumers want to resume a back-to-normal lifestyle by visiting their favorite restaurants and stores, but also want to limit their risk of contracting COVID-19. Businesses, eager to bounce back from this economic crisis, also want to welcome consumers into a safe environment, yet are hesitant about the liability that looms ahead if a consumer or contractor claims he or she contracted the virus while at the business’s location.

Guidelines

Through the Governor’s Office of Business and Economic Development (GO-Biz), the State has issued substantive guidelines for businesses in different industries to follow with respect to how a business can maintain a safe environment for employees and consumers: covid19.ca.gov/roadmap/#guidance. These guidelines include temperature checks, health screenings, social distancing, staggered employee schedules, increased cleaning, protective equipment, and more.

Local cities and counties are also adopting their own specific guidelines, some requiring masks even before the Governor announced the statewide mandate last week. Businesses have invested time and resources to restructure their stores, restaurants and workspaces to comply with these guidelines.

But even taking these proactive measures does not necessarily protect a business from a civil lawsuit. A consumer or contractor who claims to have gotten sick while visiting a business’s location will allege the business could have done more, could have acted more reasonably with regard to the safety precautions and measures taken.

And what is the business’s defense?

Uncertainty

Compliance with state and local health guidelines is good, but it doesn’t offer any legal protection. And, if we know one thing about this virus, it is that we don’t know everything yet.

Approximately a month ago, the Centers for Disease Control said masks were not necessary and did not offer any protection. Today, masks in California are essentially mandatory.

Will there be a second wave of infection in the fall or is this going to fade out like prior coronaviruses have seemed to do? Can you get the virus from touching surfaces or is it only passed through human to human transmission?

As the country and world continue to grapple with these questions and learn more about the virus, businesses are in a state of limbo with regard to how to protect their employees, consumers, and contractors, and not expose themselves to costly litigation that will shut them down.

Lawmakers Can Help

The Legislature and Governor can eliminate this uncertainty by protecting businesses that are in compliance with the state and local health guidelines. Those businesses who are not in compliance could still face liability for gross negligence.

Our economy is dependent upon the private sector reopening and remaining open. There is no question businesses want consumers and contractors to be safe and feel safe—their business literally depends on it.

But they cannot ensure complete safety for consumers and contractors from a virus that even health experts do not yet completely understand how to prevent/protect.


Jennifer Barrera is executive vice president of the California Chamber of Commerce. This article first appeared as a Capitol Insider blog post.