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As Stay-At-Home Orders Are Lifted, Businesses Should Take Action to Limit Liability

On March 11, 2020, the World Health Organization declared COVID-19 a worldwide pandemic. As the virus spread across the country, states and cities issued Stay-at-Home Orders which resulted in the closure of many businesses. On May 18, 2020, St. Louis City and St. Louis County lifted their Stay-at-Home Orders, permitting the reopening of many businesses in the St. Louis area. In Illinois, Governor Pritzker recently released a five-phase plan in which many businesses could reopen within the next month. As restrictions are lifted and businesses reopen, however, they face an enhanced risk of liability arising from this extremely contagious virus.

As demonstrated by previous epidemics and pandemics (including the Ebola and H1N1 viruses), businesses face an increased risk of lawsuits in the aftermath of a pandemic. See, e.g., Coming Attractions Bridal & Formal, Inc. v. Tex. Health Res., 595 S.W.3d 659 (Tex. 2020); Ebaseh-Onofa v. McAllen Hosps., L.P., 2015 Tex. App. LEXIS 5139 (Tex. App. May 21, 2015). Plaintiffs have already started filing lawsuits based on exposure to COVID-19, such as the recent class action lawsuit filed in a Florida federal court alleging that Celebrity Cruises negligently exposed thousands of passengers to COVID-19 during a voyage of the Celebrity Eclipse cruise ship in March 2020. Employees and customers of other businesses have recently filed similar lawsuits after contracting COVID-19, including two Illinois lawsuits against McDonald’s and Wal-Mart alleging that the companies failed to take adequate steps to protect their employees and customers from the spread of the virus.

As the virus is easily spread through person-to-person contact, many businesses have put into place preventative measures for employees and/or customers to reduce the spread of the virus, such as: screening symptoms and levels of exposure; utilizing temperature checks at entrances; rotating or staggering schedules for employees; limiting the number of customers who may enter the establishment at a given time; requiring the use of masks and gloves; promoting social distancing; using plexiglass screens; and regularly cleaning and sanitizing equipment. In addition to these preventative measures, however, businesses can (and in many instances should) also protect themselves from the enhanced risk of liability which may arise from the spread of COVID-19 to employees or customers. For example, Walt Disney World Resort has issued a warning to its visitors about the inherent risk of exposure to COVID-19 and the assumption of such risks by the visitors, even before its theme parks and Disney Resort hotels have identified a date for reopening.

While preventative measures and warnings serve as a good starting point for limiting liability for the spread of COVID-19, such actions may be insufficient in the face of the expected wave of lawsuits relating to COVID-19 exposure. Many businesses are now requiring employees and/or customers to sign Releases of Liability indicating that they are aware of the risk of contracting COVID-19 and releasing the business from all liability arising therefrom. As Missouri and Illinois continue to relax restrictions and businesses begin to reopen, a Release of Liability can serve as an essential tool in minimizing the risks associated with welcoming back both employees and customers.

The attorneys at Behr, McCarter & Potter, P.C. are experienced in preparing such Releases of Liability for clients, and can tailor a release of liability to the unique circumstances of your business. If you have questions about whether a Release of Liability could help minimize your business’s liability for the spread of COVID-19, please do not hesitate to contact our office for assistance.

Author: Tim Rudolph

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