A Legal Viewpoint for Reopening

A Legal Viewpoint for Reopening


By Donald Dunphy
June 2020

Shari Goggin is a partner at Resnick & Louis and has an extensive history as a trial attorney. Before her work in independent law firms, she was an attorney of record, supervisor and trial attorney at Liberty Mutual Insurance.  She weighs in the complex decision-making that Covid-19 has forced on fleet managers during the reopening process. Often federal expectations do not align with regional concerns, exacerbated by expert medical input. Ultimately companies need to abide by what is legally required of them.
  

Reasonable

When asked about the expectations placed upon a company for the health and well-being of its employees, drivers and customers, Goggin says, "Any company must do what is considered reasonable under the circumstances. The question, of course, is 'what is reasonable?' It should be noted that a transport company may actually have somewhat less culpability as several of my clients deliver are considered 'essential' delivering ‘essential’ products and, thus, perform essential services, such as in the delivery of food and medical supplies."
 
Many fleets find themselves in an unclear middle-space with managers often in disagreement about the liability a company has to its employees, independent drivers and customers if they contract Covid-19 after returning to work?
 
"Congressional hearings are just taking place now to find out what the specific guidelines are being established by the Federal Government, but they have not yet been established," Goggin says. "As such, we cannot (today) base our business guidelines on what the Federal Government says because we do not know what those are yet. When those are established, I would analogize these guidelines, and perhaps ultimately laws, to the safety guidelines of OSHA or the FMCSRs. Thus, if they are not followed, civil liability may exist.

 

Adhering to Standards

 "Until there are actual official guidelines, we are then left to recommend what is reasonable—what is standard in the industry, what will allow a company to still operate but do so safely. Thus, if the company follows basic, common-sense  guidelines such as regular, routine cleaning, allow for social distancing in the loading and delivery of products, provide personal protective equipment (PPE) such as gloves and masks (just as for all safety like proper shoes and reflective vests), I would think that while it won’t prevent a lawsuit (as nothing will) if these things are followed, a court would determine these to be reasonable under the circumstances."
 
Goggin suggests the importance of having the foundational work in place, such as having policies in writing, necessary documentation posted, checklists for cleaning fully established and having the PPE easily accessible.
 
"If an organization establishes its own reasonable guidelines and then they are not followed, they could be found liable, just like for any other workplace accident," Goggin says. "However, if they have established guidelines, followed those guidelines and then a driver or customer still contracts the virus, I would argue liability would not be established. To go back to basics, liability is based upon a duty, a breach of duty, proximate cause, and damages. A plaintiff/driver would have to prove all of these to recover against the company. The duty is to act as a reasonable company would act. A breach is not following those procedures, and proximate cause is still needed to show that the breach has led to the specific driver or customer catching the virus (and not from some other source) and resulting damages."

 

Unintended Consequences

One case study presents the liability of an organization be if vehicles are cleaned with strong substances without fully warning drivers of potential negative side effects, especially to drivers with pre-existing conditions like asthma.
 
Goggin states that, again, liability is based upon a balancing of what is reasonable. "One doesn’t burn down the house with people inside to kill a rat infestation problem in the house because those rats threaten the people inside," she suggests. "A duty to warn arises from a known danger that is not obvious. If some odd cleaning chemical is used which may affect drivers or customers with common health conditions such as asthma or other respiratory diagnoses, a duty to warn could arise."
 
However, Goggin says a simple warning sign or sticker much like those on the outside of the product itself, should protect the company from a liability based upon a failure to warn. "Just follow the warning on the label of the cleaning product and post it," she says. 
 
According to Goggin, it comes down to following basic, common-sense guidelines to protect stakeholders from Covid-19 consequences. Step up regular, routine cleaning. Make sure social distancing is being adhered to. Communicate new procedural changes so that employees and customers are fully aware of these. A greater level of transparency it keeps employees and customers from being blindsided.. and that is where legal troubles can begin.

 
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