Potential liability for failing to prevent the spread of COVID-19

On Sunday, March 15, 2020 Washington State Governor Jay Inslee banned all gatherings of over 50 people statewide in an attempt to slow the spread of COVID-19, the new coronavirus.  This measure is just one of many that have been imposed throughout the United States in the past weeks.  For example, essentially all sports have been suspended.  Of even more concern is the closure of restaurants and bars statewide.  Many hourly workers and small businesses are struggling through this new period of social distancing.  Schools have been temporarily closed and panicked shoppers have been clearing stores out of disinfectants and other supplies.

This isn’t the first time local governments have taken such drastic measures to slow the spread of disease.  During the Spanish Influenza outbreak the United States imposed significant restrictions to prevent and slow the spread of the disease.  For example, the Arizona Supreme Court upheld the Board of Health’s decision to ban public gatherings which resulted in mandatory school and business closures.  Globe School Dist. No. 1 v. Board of Health of City of Globe, 20 Ariz. 208 (1919).

With such drastic measures being taken to slow the spread of COVID-19, one question remains: who could face legal consequences for failing to adequately protect the public from contracting COVID-19?

A person is negligent in if they: (1) owe a duty, recognized by law, requiring the them to conform to a certain standard of conduct; (2) a breach that duty; (3) there is a causal connection between their conduct and the resulting injury; and (4) actual loss or damage.

It is possible that some one who contracts COVID-19 at a public or private business or event could claim the business owner or event organizer was negligent.  The law is not very clear as to what precautions must be taken.  It is still beneficial to take precautions if you are in a business that contacts a lot of individuals.  For example, having hand sanitizer stations set up at an event or shop, and signs posted reminding individuals to avoid touching their face and make sure to wash or sanitize their hands frequently.

If you are concerned about subjecting yourself or your business to legal liability during the COVID-19 pandemic, then speaking with a legal professional about potential ramifications may be in your best interest.

Washington Law grants health officials broad authority to control and prevent the spread of dangerous, infectious, or contagious disease.  RCW 70.05.060.  Courts generally recognize a duty imposed on the government to protect citizens from contracting infectious disease by city employees.  Anonymous Fireman v. City of Willoughby, 779 F.Supp. 402 (N.D. Ohio 1991).  Thus, local governments need to be cognizant of the risk that their employees who deal with the public could spread COVID-19 if infected.  Local governments are already taking measures to prevent that from occurring.

Employers should also be cognizant of the current COVID-19 pandemic.  An employer has a common law duty to provide a reasonably safe work place for employees.  McCarthy v. Department of Social & Health Servs., 110 Wash.2d 812, 818 (1988).  An employer might be negligent if they participated in the spread of COVID-19 in their place of work.  Thus, employers should review their procedures regarding sick leave, working from home, and should prevent any one showing symptoms of COVID-19 from physical contact with other employees.

Employers should speak to a qualified attorney if they have questions or concerns about how to limit their potential liability for the spread of COVID-19.

By: Christopher Browning, Jr.