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Law360 (March 27, 2020, 1:16 PM EDT) --
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| Holly Hempel |
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| Jessica Watson |
The extent of the inevitable economic effects for both large and small business are still unknown, but as the situation continues to escalate, businesses that still remain open, as well as businesses that anticipate reopening before the pandemic ends, will benefit from appointing someone within the company to gather information from reliable sources and dispense accurate information to tenants and their visitors on a regular basis.
The purpose of this is twofold:
- It will help satisfy the legal premises liability standard in your state by keeping those who lawfully enter the premises informed of a potential hazard; and
- It will help to stay on top of any recommended safety measures.
Moreover, dispensing practical advice could also be helpful for tenants and their visitors, as there are some actions that companies can take now to prepare for the inevitable.
For example, if the need arises to limit tenants' employees from traveling into the office, does the office have sufficient videoconferencing capability? Are the tenants' employees equipped to work from home if necessary? Are there any computer network changes that need to be made to accommodate large numbers of the tenants' employees working from home? Does the tenant have a written plan for an infectious disease outbreak response for its employees and visitors?
Have personnel been cross-trained on essential functions so that the business is able to operate even if key staff members are out? Are there flexible leave policies in place so that employees with acute respiratory symptoms will not report to work and potentially expose others due to fear of being reprimanded?
The U.S. Centers for Disease Control and Prevention is continuously updating its website as new information about the coronavirus becomes available.[1] Currently, with respect to the coronavirus, the CDC recommends the following preventative measures to business owners, among other measures:
- Actively encouraging employees who have symptoms of an acute respiratory illness to stay home;
- Ensuring sick leave policies are flexible and nonpunitive. This includes ensuring that employees can stay home to take care of their children in the event that schools are dismissed;
- Not requiring a health care provider's note for employees who are sick with acute respiratory illness as such offices may be busy and unable to provide timely documentation;
- Separating employees who report to work with symptoms of an acute respiratory illness, and sending them home;
- Requesting employees who are well but who have a sick family member at home with COVID-19 to notify their supervisor and refer to CDC guidance regarding how to conduct a risk exposure of their potential exposure;
- Emphasizing respiratory etiquette and proper hand hygiene, including providing tissues, no-touch disposal receptacles, instructing employees to clean their hands often, and providing soap and water and alcohol-based hand sanitizers in multiple locations;
- Performing routine environmental cleaning; and
- Advising employees before traveling to take certain steps, including checking the CDC's Traveler's Health Notices for latest guidance, advising employees who become sick while traveling to notify their supervisor and seek medical attention if needed, and advising employees to check themselves for symptoms of acute respiratory illness before starting travel.
Creating an Infectious Disease Outbreak Response Plan
Premises liability laws vary by state, but typically the standard is one of reasonable care, particularly when the premises owner has actual or constructive knowledge of a hazard on the property. For example, in North Carolina, to prove a defendant's negligence in a premises liability case, a plaintiff must first show that the defendant either "(1) negligently created the condition causing the injury, or (2) negligently failed to correct the condition after actual or constructive notice of its existence."[2]
However, the ultimate issue that must be decided in evaluating the merits of a premises liability claim is whether the defendant breached the duty to exercise reasonable care in the maintenance of its premises for the protection of lawful visitors.[3]
Reasonable care requires that the landowner not unnecessarily expose a lawful visitor to danger and give warning of hidden hazards of which the landowner has express or implied knowledge.[4] Reasonable care does not require owners and occupiers of land to undergo unwarranted burdens in maintaining their premises; rather, the pertinent issue is whether the landowner acted as a reasonable person would under the circumstances.[5]
Similarly, in Georgia, to prevail on a premises-liability claim, a plaintiff must prove that "(1) the owner or proprietor had actual or constructive knowledge of the hazard and (2) the plaintiff lacked knowledge of the hazard despite exercising ordinary care."[6]
As a general rule, owners or occupiers of land are not insurers of the safety of invitees.[7] Instead, the true basis of a property owner's liability for an injury to its invitee is the owner's "superior knowledge of a condition that may expose the invitees to an unreasonable risk of harm."[8] In order words, "as to premises-liability claims, recovery is allowed only when the owner had knowledge and the invitee did not."[9]
To satisfy these standards (and other similar state-specific standards), a premises owner should stay proactive by keeping him or herself apprised of new developments surrounding COVID-19 and taking care to distribute accurate information to individuals lawfully on the property.
If a premises owner becomes aware of a confirmed case of COVID-19 on the property, it would be prudent — and indeed, potentially required — under state legal standards for the landlord to alert other tenants and employees of their possible exposure, given the landlord's superior knowledge of confirmed cases on the premises.
In fact, the CDC explicitly recommends that business owners inform employees of their potential exposure if a coworker is diagnosed with COVID-19, although the identity of the individual must remain confidential as required by the Americans with Disabilities Act.[10]
Such disclosures should, at a minimum, include the fact of possible exposure (without disclosing identities), that the situation is being monitored, procedures for reporting diagnosis/exposure, facts about the virus and recommended precautions from reliable sources, an emphasis that individuals showing signs of acute respiratory illness should not enter the premises, and any safety precautions that management is taking to cut down on potential additional exposure.
Moreover, all premises owners should take reasonable steps to prevent the spread of the virus to individuals lawfully on the property. The CDC still recommends routine cleaning of frequently touched surfaces, and providing easily accessible disposable wipes and hand sanitizer to tenants, employees and visitors. The CDC's guidance should be monitored, in the event that more rigorous cleaning methods are suggested in the near future.[11]
Holly Hempel is a partner and Jessica Watson is an associate at Nelson Mullins Riley & Scarborough LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] See https://www.cdc.gov/coronavirus/2019-ncov/index.html.
[2] Rolan v. N.C. Dep't of Agric. & Consumer Servs.
, 233 N.C. App. 371, 382, 756 S.E.2d 788, 795–96 (2014).[3] Id.
[4] Id.
[5] Id.
[6] Williams v. Johnson
, 344 Ga. App. 311, 315, 809 S.E.2d 839, 841–42 (2018).[7] Id.
[8] Id.
[9] Id.
[10] See https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
[11] For more detailed recommendations for businesses to consider, visit https://www.cdc.gov/coronavirus/2019-ncov/guidance-business-response.html.
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