March 16, 2020
Authored by: Susan Brice, Daniel Waxman and Brooke Cook
We are posting a series of answers to Frequently Asked Questions and practical advice to consider in the era of COVID-19. These posts are not intended to cover all employee issues or healthcare settings recommendations, but rather are focused on dealing with premises liability involving invitees. Other resources for handling employees include: https://www.osha.gov/SLTC/covid-19/l; https://www.osha.gov/SLTC/covid-19/; https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html. Please review other posts related to COVID-19 published on this blog for additional information. If you have questions specific to your company’s individualized situation, contact Susan Brice (email@example.com) or Tom Lee (firstname.lastname@example.org). For any employment related questions, please contact the BCLP employment lawyer with whom you work or Lily Kurland (email@example.com), who can provide you with information about guidelines and protocols they have developed to assist employers with these issues.
What Do I Do if a Person Suspected or Confirmed to Have COVID-19 Has Been at My Facility?
If you have a confirmed or suspected COVID-19 case tied to your premises, contact the CDC and state and local health authorities and follow their guidelines. The CDC has published Environmental Cleaning and Disinfection Recommendations for US Community Facilities with “Suspected/Confirmed Coronavirus Disease.” https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html. See also https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html. Because some locations are experiencing community spread and others are not, it is prudent to consult your state and local health authorities for any additional guidance in dealing with virus contamination unique to your area. For example, the City of Chicago Department of Public Health has set up a website regarding COVID-19. https://www.chicago.gov/city/en/depts/cdph/provdrs/health_protection_and_response/svcs/2019-novel-coronavirus–2019-ncov-.html.
Depending upon the circumstances, in addition to cleaning, you might need to shut down the facility and/or initiate a quarantine. For example, CDC states that recommendations for the scope and duration of school dismissals will be made on a case-by-case basis based upon the most up-to-date information about Covid-19 as well as the specific cases in the impacted community.
In the very least, if you learn or suspect that you have a COVID-19 case tied to your premises, you should provide adequate warnings to those who may have been exposed or may be exposed, to the extent possible. However, you should not identify the infected person by name and must follow confidentiality laws. You should consult legal counsel and/or the aforementioned regulators to determine the scope, the recipients, the duration and the content of such warnings. It is reasonable to assume that courts would look to the aforementioned guidelines to inform the applicable standard of care and to determine whether a premises owner/operator has been negligent. Thus, it is important to review and implement all relevant guidelines and continuously update that review as the standard of care will likely be evolving in real time. As of earlier this week, cruise ship passengers sued a cruise line alleging “gross negligence” tied to its handling of an on-board coronavirus outbreak, which included a failure to warn claim.
One additional task to consider is whether to take samples of the virus (if possible) that are/were present at your facility and to store them under the appropriate conditions for later analysis. COVID-19 is an RNA virus that rapidly mutates, meaning its genetic sequence will undergo many small changes over time. https://www.newscientist.com/article/2236544-coronavirus-are-there-two-strains-and-is-one-more-deadly/. This indicates that multiple strains of the virus exist, each with its own genetic code. If litigation occurs, it would then be possible to compare the whole viral genome sequences of virus sample(s) from your facility and from the infected person. If the two sequences are different, there is a potentially good causation defense. If the two sequences are identical, it is possible that the viral infection passed through your facility. At this point, no available viral diagnostic kits are known to be able to identify differential viral strains. However, as of March 10, 2020, companies were working toward this goal. https://www.illumina.com/company/news-center/feature-articles/illumina-perspective-on-the-novel-coronavirus–covid-19–outbrea.html. If you elect to conduct environmental viral sampling, make certain to engage a properly certified and credentialed professional who will collect and store your samples using all appropriate sampling, preservation and safety protocols under appropriate chain-of-custody documentation. Furthermore, please note that these samples may contain human pathogens; as such, they can only be analyzed by laboratories certified to process human pathogens. We routinely work with experts in these areas.
If the sequence of the virus contracted by the person is different from the sequence(s) found at your facility, you would potentially have a good causation defense. On the other hand, such testing could show your facility was the source of the infection. At this point, we do not know whether viral diagnostic kits are available that are sufficiently precise to differentiate various samples of the virus at this level. However, as of March 10, 2020, companies were working toward this goal. https://www.illumina.com/company/news-center/feature-articles/illumina-perspective-on-the-novel-coronavirus–covid-19–outbrea.html. Consequently, you could just take and store the sample appropriately at this point. Further, please note that such samples can only be analyzed in a lab with special certifications. We routinely work with experts in these disciplines.