Depending on where they arelocated, offices are slowly and cautiously welcoming back employeesafter the shutdown. Likewise for retail stores andrestaurants. 

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In the vast majority of cases these openings have beenaccompanied by stringent measures to protect the health and safetyof workers and visitors. But is that enough to protect a companyfrom liability if someone catches COVID-19 within theirpremise?

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In fact, it is only half of thebattle, Saul Ewing Arnstein& Lehr attorney Louis P. Archambault tells GlobeSt.com.Companies not only have to follow the necessary guidelines tosafeguard their buildings from COVID-19, but they also have toensure compliance with those measures, hesays. 

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At the same time, visitors tothese establishmentsshoppersin a grocery-store for examplemust dotheir part to act responsibly, Archambault continues. That meanswearing masks, practicing social distances and adhering to localguidelines as well. "As human beings we have a responsibility toeach other," he says. For the less altruistically inclined, hewarns that individuals not taking these steps could lose out onpotential claims should they do get sick. 

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It has been argued that in a lawsuit it would have to be proventhat a person caught COVID-19 in a particular building, on aparticular day etc. Archambault argues this is an easier case tomake than many might expect. Between our mobile devices, privatesecurity cameras and other tracking and tracing methods, there areenough records available to determine who was within six feet of aninfected person, he says.

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"Businesses absolutely need to take this seriously. But let'ssay that despite their best efforts, someone catches COVID-19 attheir building. If they have been following the guidelines and areactively enforcing them, they can show they have minimized the riskand potential exposure to people. Then it becomes much harder toprove that  a duty was breached."

Which Guidelines?

In a way, Archambault says, much of this is basically premisesliability 101, only now companies have new guidelines to follow. Itis important to follow the right ones, though, starting with thosethat have been issued by the CDC. There are also county-specificguidelines for location and business type that must be followed aswell. In addition, OSHA has released guidelines for workers thatmust be adhered to. Finally, there have been a slew of guidelinesreleased by industry associations, brokers and leading companies.The latter don't necessarily have to be followed but it would begood to be aware of them and comply when possible, Archambaultsays.

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"I would recommend checking with trade organizations. They areworking to take all of those general guidelines and convey them tomembers and that can make it easier from an enforcementperspective."

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Also, he adds, it can help a business not feel so alone if tradeassociation is helping.

Enforcing the Guidelines 

In many retail establishments, the sensitive task of asking acustomer to wear a mask has been left to poorly-trained retailclerks. Another related development: while airlines have made it arequirement to wear a mask on a flight, they have reportedly toldflight attendants they don't have to enforce that rule.

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These situations open a company to liability, because they arenot properly enforcing the safety measures they have put in place,Archambault says. "If a lawsuit comes, the first question will be,did you have guidelines? The second will be, did you enforce them?"he says.

Congress Talks About COVID-19 Liability

Congress has been debating whether to provide liability forbusinesses against COVID-19 claims. Essentially, it is somethingRepublicans are pushing for, while most Democrats maintain it isnot necessary and that such protections could lead businesses totake shortcuts with safety.

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However this shakes out, Archambault suggests not assuming sucha measure will pass. Counting on it is premature before thespecifics are unveiled, he says.

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Also, as the country begins to reopen, the opportunity forinfection grows.

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If that doesn't convince you, Archambault has one finalargument: "these potential risks may not be covered by currentproperty insurance."

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