"Risky Business” isn’t just the name of an ’80s Tom Cruise movie—it’s the unfortunate theme for many entrepreneurs, during and after the COVID-19 pandemic.
Keeping a sharp eye out for the legality of things in our litigious society, the Glendale Chamber of Commerce hosted a Zoom meeting May 14 that offered legal tips for businesses reopening in a pandemic.
There was plenty to chew on for patrons, as well.
Christopher Callahan, Alexis Glascock, Mario Vasta and Terry Evans from Fennemore Craig Attorneys took turns talking about “how to manage risk and minimize the risk of claims now that Arizona’s stay-at-home order is beginning to phase out.”
They said as customers return to your business, there are ample possibilities for contract and tort disputes.
Callahan noted Rep. Andy Biggs of the 5th Congressional District (Chandler, Queen Creek) introduced legislation aimed at protecting businesses.
According to a Biggs press release, his bill is “to protect businesses taking reasonable steps to prevent the transmission of COVID-19 from frivolous negligence claims.”
The Biggs bill “requires a specific jury instruction in civil actions in federal court that include a claim alleging negligence arising from the transmission of COVID-19 (i.e., coronavirus disease 2019) and a request for damages.
“Specifically, a court must instruct the jury that negligence may not be found solely on the basis of holding oneself open for business.”
H.R. 6601 was introduced by Biggs April 23 and referred to the Judiciary Committee the same day. Biggs is also on the Judiciary Committee.
Evans then took over to talk about insurance coverage.
He stressed for business owners to read the fine print on their policies at renewal time and be on the lookout for “communicable disease exclusion”—which could, theoretically at least, allow an insurance company to wash its hands of any claim during a pandemic.
“I’ve seen two renewals where they tried to slip them into policies,” he said.
And, he added, with so many people working from home, the “workplace” definition has often changed.
“If you’re working from home and trip over your dog at 2 a.m.—technically, that’s workers’ compensation,” Evans said.
Callahan then jumped in to note most insurance policies don’t cover “business interruption” due to COVID-19.
Loss of business income “has to result from physical loss or damage to your property,” Callahan said.
He pointed to exclusionary language in most policies: “We will not pay for loss or damage caused by or resulting from any virus, bacterium or other microorganism. …”
Callahan noted that the most common claim in our litigious society falls in the category of negligence.
Checking temperatures before allowing employees to work is one way to show “duty” if a person alleges they caught COVID-19 at your workplace and sues you, Callahan said.
The attorney stressed it may be important to show “you’ve acted reasonably.”
“That can be you’re following guidelines—state or local official guidelines—maintaining social distancing, wearing masks and gloves, avoiding direct contact with customers as much as possible.”
And, if you find out an employee is sick from the virus, do you tell customers?
“Technically, it’s a good thing,” Callahan said.
“However, there are HIPAA (Health Insurance Portability and Accountability Act) guidelines.”
Meaning: Trying to avoid one lawsuit could be a trap for another.
Another conundrum came up with the idea of having customers sign waivers promising not to sue if they contract COVID-19 at your business.
“That might give them the idea to sue you,” Callahan said.
Looking at things from all angles is great for lawyers but can leave the rest of us feeling cynical.
To cleanse the palate, so to speak:
Panda Cares, the philanthropic arm of Panda Express, has donated $77,760 worth of personal protective equipment to Phoenix Children’s Hospital.
The donation includes 9,600 KN95 respirators and 80,000 single-use surgical masks.
“This donation is simply monumental when it comes to fighting the spread of coronavirus, and for protecting our health care workers, patients and families,” said Steve Schnall, senior vice president of Phoenix Children’s Hospital. “Panda Express and Panda Cares have made an extraordinary effort to provide this equipment the hospital relies on to give and receive best-in-class care.”
Panda Express has multiple locations in the West Valley, including Goodyear, Glendale and Peoria.