Steps Retailers Can Take to Minimize Their COVID-19 Liabilities

In 2020, the COVID-19 pandemic caused many retailers to temporarily close their doors or operate at minimum capacity, proving to be the most trying year for retailers in recent memory.  However, as the first rounds of vaccines are being rolled out across the nation, there appears to be some positive news along with the expectation that restrictions on businesses will be lessened or lifted altogether.

However, the virus will not go away overnight, and retailers must continue to be diligent in keeping their customers safe and avoiding being on the receiving end of a COVID-19 customer claim in 2021. Below are a few pieces of information to help retailers make sure they’re doing their due diligence in minimizing their COVID-19 liabilities.

Understanding Civil Liabilities in Your State

Retailers should be relieved to know that in many states, including Ohio, Iowa, Kansas, Louisiana, Missouri, North Carolina, Oklahoma, Utah, Wyoming, and Georgia, legislatures have passed laws protecting retailers from civil liability in situations where customers may claim they were infected at one of the retailer’s stores. A retailer will enjoy this immunity from civil liability so long as the retailer did not act with gross negligence or with reckless or intentional disregard regarding the potential for exposure to COVID-19.

In states where no statutory protection is provided, being diligent in enforcing safety measures will go a long way in defending potential claims for exposure. Working to deploy operating plans that minimize your store’s liability and adding measures outside of what's required by local and state regulations will set your store up for the best chance of being shielded from a legal claim.

Minimizing Liability in Your Stores

First, retailers must know what's expected of them by their state and local governments, and strictly comply with any rule or order related to COVID-19 protections. This information can be found on your state and city websites. Additionally, retailers should post warnings and notices at every entrance of their store that clearly explain the guidelines for shopping and refer to the government orders that mandate such guidelines.

The notice should include language explaining that although the retailer has employed safety guidelines, it cannot guarantee against the risk of contracting COVID-19 in areas open to the public, and that the customer assumes any risk by entering the premises. In Georgia, for example, businesses that provide a written warning enjoy a rebuttable presumption that any person who may try to sue for exposure to COVID-19 assumed that risk by entering the store.

Deploying Additional Measures to Keep Customers Safe

In addition to what may be required by state or local regulations, retailers should also employ additional safety measures to keep customers safe from infection. Most retailers already have instituted a cart cleaning station at the entrance of their stores that's either a self-service station or staffed with a single employee whose job is to sanitize carts — an easy step that should continue throughout 2021.

Also, where possible, retailers should encourage the use of self-checkout kiosks to reduce the interaction between customers and employees. Retailers should also continue to mark spaces for customers to use as a guideline while lined up to check out to keep them six feet apart.

Retailers must be sure to document their policies regarding face coverings, cleaning, social distancing, number of people allowed in the store, and any other policy put in place to prevent exposure to COVID-19.

Lastly, there should also be a plan in place for responding to a positive COVID-19 test received by an  employee or a customer if reported. These policies must be enforced and taken seriously, as having policies in place that look good on paper but are knowingly being ignored could lead to a finding of gross negligence or intentional disregard for the safety of customers. Such negligence would result in the loss of the immunity from civil liability available in many states.

Kevin L. Murch is a partner at Perez & Morris LLC in its Columbus, Ohio office, and is the chair of its Commercial Litigation Practice Group. As part of his practice, Murch routinely defends retailers and restaurants in litigation and also advises them on risk management and litigation avoidance.