As Wisconsin and the rest of the world slowly awaken from the COVID-19 pandemic – or not so slowly as the case may be – businesses are reopening. That includes agricultural establishments – farms, farm stores, farm stands, fruit-picking fields, vineyards and any other agricultural enterprise. As those places open a common question among owners is – what is my potential liability for COVID-19? Am I at risk if someone contracts COVID-19 on or from my property or establishment?
The short answer is yes there is a risk of liability for COVID-19 from reopening. But it’s possible to greatly reduce that risk by keeping a few points in mind:
Clean, Clean, Clean – first and foremost, any legal analysis of potential liability will be focused on the measures the owner has taken to protect health and safety. If steps are taken that could objectively be seen as “reasonable,” it’s much less likely that liability will be imposed.
What are “reasonable steps?” It’s imperative that any place that invites the public onto its premises has a vigorous sanitation and hygiene program. It’s also wise to adopt procedures and policies recommended in guidelines issued by organizations like the Centers for Disease Control and Prevention, local health departments and the Wisconsin Economic Development Corporation, as well as others that may be recommended by agricultural organizations for specific farm sectors.
Some businesses are taking temperatures of customers and visitors. Some are requiring face coverings. Each establishment must decide for itself what is reasonable and cost-effective, but the more precautions that can be reasonably taken the less likely it is that liability will be found.
But remember; once procedures and policies are in place, they must be enforced. That means, for example, that if a business requires social distancing, face coverings or limits on the number of persons in an area at one time, the business must ensure visitors follow that policy – even if that means turning people away at times.
Keep workers safe – part of keeping the public safe is keeping employees safe. The Occupational Safety and Health Administration with the CDC issued June 2 a joint guidance with recommended actions to protect agricultural workers from the coronavirus. Recommendations in the new guidance deal with reducing exposure risk, creating a COVID-19 assessment and control plan, screening and monitoring workers, managing sick workers, addressing back-to-work issues after exposure, and cleaning and disinfection. Following those guidelines will help to reduce exposure for workers – and will also help in reducing exposure for customers and visitors. Visit www.osha.gov/news/newsreleases/national/06022020-0 for more information.
What’s happening locally – stay abreast of local ordinances and regulations. Wisconsin’s statewide “Safer at Home” order and other state orders may be history. But a number of counties and municipalities have orders or regulations that apply in specific jurisdictions.
Consider waivers – many owners of agricultural enterprises wonder if they should be requiring customers and visitors to sign releases waiving liability for exposure to COVID-19. Some owners are requiring them but it remains to be seen how courts will rule on their effectiveness after a few cases have worked their way through the legal process. Still waivers can be another layer of protection if they are worded correctly and reflect appropriate legal standards. Waivers should be specific to the COVID-19 risk and require visitors to acknowledge the risk of COVID-19 that being on the property potentially presents. It’s recommended a lawyer be consulted in drafting a waiver. Requiring waivers is an additional measure to take to reduce liability. It’s never a substitute for proper hygiene and sanitation.
Insurance – it’s always essential to have adequate liability insurance in place and to review it regularly. Policies vary; some may cover COVID-19 liability or at least cover defense costs. But many policies have exclusions for damages resulting from viruses, epidemics, pathogenic agents, etc. Consult with a business-insurance agent about available coverage.
We all need to behave – in any lawsuit brought by someone alleging he or she contracted COVID-19 on the defendant’s premises or due to the defendant’s failure to take steps to avoid the exposure, the plaintiff’s own conduct will be examined. People who place themselves in positions of potential risk also have a responsibility to act reasonably. If the plaintiff failed to do so, that can go far in offsetting much of the owner’s liability – assuming the owner has acted reasonably to reduce the exposure risk.
Livelihoods depend on reopening at some point. There’s no need to fear it as long as business owners are conscientious, think it through beforehand and stay flexible enough to change as things progress.