As businesses large and small begin reopening their doors, one important consideration will be managing risk from a premises liability standpoint. This article is part of a series exploring issues impacting businesses during the uncertainty of COVID-19. In this part, I will discuss how businesses can manage the risk of COVID-19 premises liability. If your business was closed or had its operations reduced by a COVID-19 Executive Order, returning to "normal" will not be without challenges, but premises liability can be mitigated with the assistance of an attorney.

The White House has published the "Guidelines for Opening America Again" and the National Governor's Association has published its "Roadmap to Recovery." The purpose of these documents is to guide staged reopening, protect public health, and promote economic recovery. Businesses need their own roadmap, tailored to their industry and geographic location, among other things. It is critical for the business roadmap to include steps to mitigate workplace transmission of COVID-19 among employees and guests.

Duties Owed by Business Owners

The issues discussed in this article are framed around Maryland law, but the principles apply throughout the country. Business owners owe certain duties to people who visit the business, contingent on the person's status.^[1] Maryland has four classifications: invitee, licensee by invitation, bare licensee, and trespasser.^[2]

An invitee is a person who enters a business for purposes connected with the purpose of the business.^[3] The business must use reasonable and ordinary care to keep the premises safe for these guests and to protect them from any unreasonable risk that they could not discover through the exercise of ordinary care.^[4]

A licensee by invitation is a social guest to whom the business owes a duty to exercise reasonable care to warn of a dangerous condition known to the business, but not easily discoverable by the social guest.^[5]

A bare licensee is a person who enters a property with the knowledge and consent of the business, but for the guest's own purpose and interest.^[6] This type of guest would be someone such as a salesperson making a call on the business. The business owes no duty to a bare licensee except to refrain from willfully or wantonly injuring the bare licensee from creating new and undisclosed sources of danger.^[7]

A trespasser is someone who intentionally and without consent or privilege enters the business's property.^[8] No duty is owed to a trespasser, except to refrain from willfully or wantonly injuring or entrapping the trespasser.^[9]

Premises liability lawsuits for exposure to COVID-19 have begun, with many alleging, among other things, that COVID-19 presents an unreasonable risk of harm to a person visiting the business. Any business could be exposed to such a lawsuit. The defense to those claims will be strengthened if the business takes reasonable precautionary steps to develop a risk-management protocol for the workplace in advance of potential COVID-19 transmission. Development of this protocol should include:

1. Protection of workforce, customers, and other guests

2. Protection of business premises

Protection of Workforce, Customers, and Other Guests

The first line of defense for COVID-19 transmission is employee awareness. To defend against liability for mishandling a COVID-19 employee transmission, businesses should develop written procedures and document how the education and procedures were implemented, verified, and enforced. Employees must be trained to appreciate and monitor COVID-19 symptoms and the importance of self-reporting. Businesses need to keep up to date regarding symptom management and reporting through guidance from the CDC, which changes frequently.

In addition to educating employees, businesses need to adopt a policy for responding to employees with a confirmed or suspected COVID-19 infection. The CDC advises employers actively encourage sick employees to stay home and employees who are well but have family members with COIVD-19 to notify their supervisor so that a case-by-case decision can be made about the risk posed to others.

Given that workplace transmission can occur through customers and other guests of the business and not just employees, many businesses are instituting COVID-19 signage and notices at entry points. Such notices will have common information; for example, instructions for customers and guests to inform the business if they have experienced any COVID-19 symptoms or been exposed to someone with COVID-19. But businesses should not rely on one-size-fits-all signage. Businesses need to customize based on factors unique to their industry, geographic location, and other factors.

Protection of the Business Premises

Pre-COVID janitorial routines will be, for most businesses, insufficient. Businesses need to develop a more robust cleaning and disinfecting process for the workplace. This should include a checklist specific for the business. Begin with reviewing the CDC's guidance.

For purposes of risk management, it is critical that the sanitation regimen be documented. If a COVID exposure occurs, a company's ability to challenge liability for the exposure will be strengthened if it has documented the cleaning and disinfecting activities, to include date, time, and personnel involved.

Pre-COVID, many businesses did not have secured entry points; instead, guests were allowed multiple points of entry. Many businesses have already begun to change this policy so that customers and guests must enter the workplace through a common entrance where COVID-19 screening and education can occur. In addition to the secured entry points, the premises should be evaluated for locations previously open to customers and guests that should now be restricted to employee access only.

As a companion to CDC guidance, businesses should consult with their local health department and industry or trade association for additional guidelines and best practices that can be incorporated.

An attorney experienced in premises liability can serve as an important resource. Experienced counsel will evaluate a business's protocol under existing laws, identify additional points for risk management, and coordinate with sanitation, hygiene, and health consultants. Similarly, if a business experiences a workplace COVID-19 transmission, an attorney can lead the strike team to investigate the outbreak in coordination with other consultants while maximizing the protections over the investigative materials through attorney-client and work product privileges.

I advise large and small businesses to manage risk from premises liability. If you have questions about implementing best practices for your workplace, contact an attorney to discuss the specifics of your business. My colleagues and I are continuing to serve our clients during COVID-19. If you have questions, contact me at cxc@gdldlaw.com to schedule a call or video conference.

About Goodell DeVries

Goodell DeVries is a regional law firm with a national presence. From product liability and mass torts to medical malpractice law, complex commercial litigation, insurance, toxic torts, and more, Goodell DeVries's team of 50 attorneys handles the most complex legal challenges for clients across the country. Our lawyers are ranked among the best in the nation by leading directories, including Chambers, Best Lawyers, and Super Lawyers. To learn more, visit www.gdldlaw.com.

Notes

[1] Baltimore Gas & Elec. Co. v. Flippo, 705 A.2d 1144, 1148 (Md. 1998)

[2] Flippo, 705 A.2d at 1148

[3] Bass v. Hardee's Food Sys., Inc., 982 F. Supp. 1041, 1043-1044 (D. Md. 1997), aff'd, 229 F.3d 1141 (4th Cir. 2000)

[4] Hardee's Food Sys., Inc., 982 F. Supp. at 1043

[5] Flippo, 705 A.2d at 1148

[6] Id., 1148 (Md. 1998); Wells v. Polland, 708 A.2d 34, 40 (Md. Ct. Spec. App. 1998)

[7] Flippo, at 1148

[8] Flippo, at 1148; Wagner v. Doehring, 553 A.2d 684, 687 (Md. 1989)

[9] Wagner v. Doehring, 553 A.2d 684, 687 (Md. 1989)