Reopening Your Business in the Age of COVID-19: A Customer-Facing Approach

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2020 Issue Two

Reopening Your Business in the Age of COVID-19: A Customer-Facing Approach

By: Monica Gaudioso, Debrán O’Neil, and Andrea Perez

As businesses in certain states begin to open back up to the public after the COVID-19 shutdowns, business owners may be wondering what legal duties they owe to their customers, and what, if anything, they can do to mitigate the risks of future lawsuits and claims. We hear our clients’ concerns about lawsuits, and understand many feel they are in a catch-22: they want to reopen their businesses, but if they reopen, they worry about being sued. There are no clear answers right now (and as lawyers, we hate this, too), but we believe there are at least steps you can take to help reduce the potential risks. And even if your state is not planning to reopen now, it is never too early to start planning ahead in times such as these.

Legal claims from customers for COVID-19-related injuries will most likely be considered premises liability claims. Generally speaking, patrons of a business are “invitees” who have the right to expect a reasonably safe business establishment. Business owners have a duty to exercise ordinary care to keep their business premises reasonably safe for their customers. This requires business owners to either remedy any dangerous conditions they know about (or should have known about) or adequately warn their customers about the dangerous condition at the facility. In other words, business owners are required to act as a reasonable person would under the circumstances.

The information provided by the CDC, doctors, scientists, and other experts is clear that no matter what precautions you take, it is impossible to fully remove the dangerous condition of COVID-19 from your premises if you open to the public. So, given the CDC’s guidance and state and local ordinances, this standard likely requires business owners to take reasonable steps to prevent the spread of COVID-19 to customers on their premises, and to warn their customers of the appropriate precautions to take while patronizing the business. The argument can and should be made that the general public is well-aware of the high risk of COVID-19 given its worldwide impact and media coverage, and the risk of contracting COVID-19 is an open and obvious danger that a business owner does not need to warn its customers of. But, one potential issue that may arise is the imbalance of information available to a business owner versus the customer. For instance, the business owner may learn of a confirmed COVID-19 case at their shopping center, and the customer may not have access to this information. The extent to which a business owner must take extra precautions in response to a confirmed COVID case, or notify its customers of this information, remains to be seen. Until a court addresses these issues in litigation (which to date, we have not seen), businesses should err on the side of caution.

While it is very difficult, if not impossible, to prevent lawsuits altogether, it is crucial to think ahead and build the evidence necessary to defend any future claims. Below, we outline some ideas and strategies to consider in planning your reopening strategy. This is by no means an exhaustive list, nor is it one-size-fits-all as every business is different, but it can provide a starting point for you and your team.

Warnings and Other Signage

By now, we have all received boatloads of emails from online shopping outlets and other businesses you frequent about how they are implementing procedures to protect their employees from COVID-19, which, by extension, protects the customer. But in these times, there is a big difference between ordering a pair of jeans online and going to a brick-and-mortar store to try those jeans on. Again, while everyone should know the risks COVID-19 poses, posting warnings and other signage should be one of the first strategies you deploy when planning to reopen your business and fulfill your legal duties to your customers. Those warning signs can and should likely parrot the CDC, federal, state, and local descriptions of COVID-19 and the risks it poses. In addition, signage discussing social distancing, the recommendation to wear a face covering while on the premises, and, if you operate a gym or other athletic facility, for example, proper handwashing procedures, are also good options. This is discussed in more detail below, but if your company has employed new, more comprehensive sanitation procedures, those should also be posted as well. Another good option if it is feasible (for example, if you are a membership-based business) is to send an email to your clients with these warnings and signage ahead of reopening so customers know what to expect. Or, if your employees have close relationships with customers, provide them with copies or pictures of your new signage that they can send to their customers in advance. These kinds of efforts will not only make your customers feel safer, which in turn will make it more likely people will frequent your business, but it is great evidence in the event a claim arises.

New Procedures and Internal Documentation

You should also consider your current sanitation procedures and whether they need to be revamped to address COVID-19 concerns. These procedures will vary depending on the type of business you operate, but certain things like having employees sanitize all surfaces before doors open to customers, at the end of business hours, and more frequently during business hours are a good place to start. If you operate a gym or other fitness or spa facility, allotting more time between classes or appointments (or shortening classes or appointments) to allow for sanitation in between is also another option. Outside of sanitation, if you offer refreshments to customers who frequent your places of business, consider either refraining from doing so, or providing only bottled water. If your establishments have public restrooms, consider temporarily closing those facilities except in emergency situations. Based on state and local restrictions regarding capacity, advise customers how many people are allowed in your establishment at a time, and empower your employees to enforce that restriction if there are too many people present. If you are a restaurant or other business that does not take reservations or appointments, consider whether it would be feasible to implement such measures to assist you in maintaining the required capacity. There are many free or low-cost apps your employees can use to manage appointments without revamping your entire system. And again, if you are implementing new procedures, post those new procedures at your establishment and/or send them out in advance so customers know the lengths you are going to try to keep them safe.

A procedure is only as good as its implementation. Should a claim arise, all of the internal procedures in the world will not help if they were not implemented the way they were supposed to be. So, if you decide to implement any new procedures, internal documentation demonstrating your employees are following those procedures should also be required. Have your employees fill out a chart every day of each round of sanitation they perform, and have them indicate the time it was completed and sign their name. If you or your employees send out emails to customers outlining your new procedures, make the effort to keep an electronic file with all of those communications. This type of documentation will give you a clean record if something should happen.

Waivers and Updating Customer Contracts

We also think it is wise to conduct a review of your legal agreements, and consider a liability waiver for customers. Although it will be difficult to confirm whether a customer contracted COVID-19 at your business or elsewhere, a liability waiver could be helpful as a defense if someone brings a lawsuit, legitimate or otherwise. If your business requires your staff to interact with customers with less than six feet of distance (e.g., hair and nail salons, massage parlors, and dental offices), or if your customers will be in a space where there is a risk social distancing will not be followed (e.g., churches, gyms, and event venues), consider sending a liability waiver to those customers who still want to engage your services. The liability waiver should discuss the risks the customer is assuming, and clearly note that, despite knowing the risks in contracting COVID-19, the customer still plans to enter your premises and receive your services. The liability wavier should also include a release of liability that aims to protect you and your staff from a lawsuit if the customer becomes ill or dies from COVID-19. Further, the liability waiver is something you can send electronically to your customers for execution before they are on your premises. If you decide to send your customers a liability waiver, we recommend keeping accurate records on who has and has not signed your liability waiver.

Business owners should also review any written customer contracts related to their business to see if they need to be updated due to COVID-19 concerns. A common contract provision called “Force Majeure” enables a party to a contract to either delay or cancel their responsibilities due to extreme circumstances outside their control. That being said, boilerplate force majeure clauses do not typically include pandemics as a triggering event because it has not been a concern until now. Force majeure protection is important, because it may enable you to avoid fully performing your contractual obligations without the fear of breaching your agreement with your customers. Business owners may determine which contracts are open to revision on a case-by-case basis, but if possible, we suggest updating your agreements to include force majeure language about pandemics and other events which are reasonably beyond your control that may prevent your business from operating. For example, those in the event and conference business can use force majeure and other relevant contract language to protect deposits if an event must be postponed or canceled due to COVID-19. If your business does not receive written contracts from its customers but does have terms of service on its website (e.g., subscription terms, terms of use, website terms and conditions), these can also be revised to accommodate the new effects COVID-19 will have on your business.

Questionnaires & Temperature Checks—A Good or Bad Idea?

We have seen a rise in discussions of “customer questionnaire” and temperature checks before letting customers enter your place of business. While these ideas may seem like good ones at first blush, we caution you to remember what your duties to your customers are—you only have the duty to take reasonable measures to keep your customers safe and to warn customers of the risks at play. Asking your customers to fill out a COVID-19 Questionnaire asking if they have certain COVID-19 symptoms or have traveled in the past 14 days to certain areas could potentially increase your duties to your customers. And, unless you operate a medical facility and your employees are in fact doctors, asking your employees to evaluate such questionnaires could be a trap for the unwary. A better option is to put the onus on the customer, not your employees, and either inform your customers they should not come to your place of business if they have certain symptoms or have traveled to certain places in the past 14 days, or post such signage at your establishment (or both).

Similarly, temperature checks could do more harm than good. A temperature check would likely require your employee to be within 6 feet of a customer to administer. If either your employee or customer is asymptomatic (which is common), such a check risks spreading COVID-19 more than it prevents it. A more practical solution is to request that customers self-monitor and stay home if they think or know they have a fever or other symptoms.

In the end, reopening poses certain risks that cannot be completely eliminated. But, by implementing some or all of the tools discussed above, your customers will hopefully feel safe enough to begin frequenting your business again, while, at the same time, protecting your business from potential COVID-19-related lawsuits altogether, or mitigating the risk those claims will result in a judgment.