Small Business Balancing Act: COVID-19, Considerations on Whether to Stay Open When You Must
While some states, counties, and cities are mandating closure of businesses typically open to the public, the restrictions are more lax, or nonexistent in other areas of the country. Closing your business is the safest way to participate in social distancing. We all took immediate notice when the NBA suspended its season and the NCAA March Madness Tournament was cancelled.
Small business owners, however, have unique considerations. Closing temporarily, when unsure of how long the quarantine might last, could mean closing permanently. Boutique gyms, privately owned hair salons, and neighborhood coffee shops, for example, have a particularly tough choice to make. Small business owners are nimble and creative, however. For example, instructors are leading fitness classes in empty studios streamed to their members at home; appointments are widely spaced out; and cafes have removed tables and are shifting to carry out only.
At this moment, we see the consequences of social distancing as necessary steps for the greater good. But later, when the “greater good” sentiments fade, those that were sickened by the virus might forget, or fail to realize, that tough business decisions had to be made by their neighbors, whether to fully quarantine and potentially lose their livelihood or keep their doors open to the general public.
Liability of Premises Owners
Business owners with premises open to the public owe a duty to their customers and clients. They have an obligation to maintain a reasonably safe environment by warning and protecting against hazardous conditions.
While dangers that are open and obvious do not impose liability on a business owner, in some cases, even if a danger is clear, that business owner might still be held liable if the risk of harm is foreseeable. At this point, medical professionals have educated the public on the dangers of COVID-19 and how to limit the risk of exposure. COVID-19 is everywhere – it is open and obvious, but is the risk of harm foreseeable?
Case Study: Legionnaire’s Disease
Legionnaire’s disease causes an illness not unlike pneumonia and can be deadly. Legionnaire’s disease is not contagious, but it is caused by inhaling water droplets contaminated with Legionella bacteria. One of the largest documented outbreaks occurred at a state fair in North Carolina in September 2019. Health officials traced the source to a hot tub display and confirmed 136 cases of the disease. Potential defendants could include the hot tub vendors, maintenance contractors, festival hosts, and premises owners. Additionally, with 136 confirmed cases, the risk of a class action is also present. Plaintiffs could argue that the vendors should have taken precautions and tested for the bacteria or that festival hosts and premises owners should have taken action to prevent the spread of the disease.
Legionella bacteria from a hot tub display is seemingly not an open and obvious danger like, perhaps, COVID-19. That does not mean business owners should neglect to take measures to protect their customers and clients – the risk of harm that some or many people could get sick is a foreseeable one. The nursing homes in Seattle are a tragic example.
Duty to Protect
A plaintiff could claim that a business failed to take appropriate precautions such as providing hand sanitizer or sanitizing wipes, switching to disposable dishware, having employees wear protective masks or gloves, or engaging specialized cleaning companies. Other precautions to consider are removing tables and chairs to eliminate dine-in, eliminating self-serve food items, or cutting class sizes. For businesses that operate by appointment, times could be staggered to avoid waiting room crowds. Whenever possible, schedule virtual client visits.
Duty to Warn
For a communicable disease like COVID-19, a plaintiff could claim that a business owner should have provided warning if they had reason to know someone suspected of having, or diagnosed with, COVID-19 was recently on the premises, like an employee. More generally, a warning can be something as simple as a sign communicating why a coffee shop has switched to disposable cups, a gym sending a message to its members explaining why class sizes have decreased in size, or a hair salon justifying their stylists wearing face masks even though they are healthy.
Causation
As a practical matter, it will be difficult for a plaintiff to prove where they contracted the disease. It is communicable and has an incubation period. However, if a cluster of people were diagnosed with COVID-19 and had a visit to the same establishment in common, that could be evidence enough.
Business Considerations
During this uncertain time, remaining open to the public is a risk, but every decision in business is a risk. Small business owners that have not been forced to close have to achieve a difficult balance to succeed – to socially distance and avoid liability or risk potentially closing forever.