REOPENING BUSINESSES IN PA AND NJ
BUSINESS OWNERS MUST TAKE "REASONABLE CARE" TO PROTECT THEIR CUSTOMERS FROM COVID-19
As local governments begin to allow the limited reopening of nonessential businesses, business owners are bound to have a plethora of questions as to how to do so during this complex and unprecedented time. A major concern of many proprietors is whether they can be held legally liable if a customer contracts COVID-19 while at their place of business.
In both Pennsylvania and New Jersey, business owners have a duty to take "reasonable care" to protect their customers from a dangerous condition. "Reasonable care" means the amount of care and caution for the safety of customers that other business owners in similar situations would take. For a business owner to be liable, the customer would not only have to prove that they contracted COVID-19 at that particular business, but that the business owner failed to meet the legal standard of reasonable care. In practice, it will be tough to demonstrate a direct link between the virus and the exact location where the invitee contracted same. In terms of taking appropriate precautions under the law, best practice to avoid negligence is to follow all applicable guidelines of the CDC and of the Pennsylvania
[1]
and New Jersey
[2]
respective Department(s) of Health.
On Wednesday, May 20, 2020, the CDC published comprehensive recommendations for the reopening of certain nonessential businesses. The full set of guidelines established by the CDC can be found
here
. Specifically, Appendix F of these guidelines establishes detailed safeguards for specific businesses such as child care facilities, schools and camps, restaurants and bars and mass transit organizations. As the CDC continues to gain more information about the spread of COVID-19, the guidelines will be adjusted accordingly.
For other businesses such as retail operations, "reasonable care" might be to:
- Wear face coverings and require customers do the same;
- Use non-contact payment options and avoid handling money or credit cards if possible. If money or other items must be touched, both employees and customers should transfer such items by placing them on the counter so as to avoid direct contact;
- Counters should be sanitized between each transaction;
- Establish a practice of frequently disinfecting all surfaces that are regularly touched;
- Decide whether fitting rooms will be used. If so, consider sanitizing the fitting rooms between customers;
- Determine how many customers can safely be in your business at once;
- Determine where customers will wait to come into your business;
- After obtaining permission from your landlord or the condo association, if applicable, post clear and conspicuous signs for customers to see before entering, alerting them to your mandatory mask and social distancing requirements (consider signs with pictures and/or in multiple languages);
- Post several signs in visible areas throughout your business regarding the importance of safe practices for employees and customers;
- Consider using online/telephone ordering and curbside pickup, if possible;
- Before opening, communicate with the public as to your date of reopening, any reduced hours to provide deeper cleaning and what actions you plan to take to ensure the safety of your customers. Include a friendly note (and reminders) as to what you expect of your customers;
- Have available no touch trashcans and provide hand sanitizer stations in multiple locations;
- Disinfect your inventory; and
- Consider having your customers sign a liability waiver or release.*
(*
Liability waiver and releases to be discussed the next installment of this "Getting Back to Work" series
).
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