Liability and COVID-19 Mitigating Your Business’s Risk

As business owners, we are all working hard to adapt and re-open our doors in uncharted territory as COVID-19 has changed the way we operate. Ingenuity and flexibility will create new opportunities but along with this comes new risks to your business, people, and property.

We recognize the uncertainty is stressful and that it is impossible to prevent every liability risk, but we’d like to share some of our insurance expertise to help you limit your business’s exposure. Below you will find answers to some of the questions that have been of highest concern to our business clients:

Q: Does my business liability insurance provide COVID-19 protection?

Answer: Commercial general liability (CGL) insurance provides coverage to a business for: bodily injury and property damage caused by the business’s operations, products, or injuries that occur on the business’s premises (subject to policy conditions).

If during the course of your normal business activities at your insured location, a third party alleges property damage or injury due to your negligence, this section of your policy is designed to protect you. Even if the allegations against you are not accurate or proven, your policy will respond to defend on your behalf, subject to the policy wordings and exclusions. While it is the third party that must prove their damages and that you were negligent, businesses’ customers are owed the highest duty of care against harm.

The risk of a claim being made against your business for failing to exercise a reasonable level of care in preventing transmission of COVID-19 is likely higher if you work in the hospitality or retail sectors. However, proving that the infection point of the third party is from exposure to the virus at your business or resulting from your operations will likely prove to be difficult as symptoms of COVID-19 do not typically present themselves for several days.

Q: How can I limit my liability exposure on my premises?

Answer: Whether you are a property owner, renter, or lessee, COVID-19 has changed the way our business locations are being accessed and used by staff and customers. With the creative new ways we are inviting our staff and customers back through our doors, new risks are being encountered inside and outside of our locations.

Below we have included some areas of loss prevention to review and consider, but there will be others that are unique to your business and location. What is universal, is under the Occupiers’ Liability Act our businesses owe the highest duty of care to persons entering our premises. We must exercise “reasonable care” to prevent damage or injury to them from unusual dangers of which we are aware, or should have been aware. We are not expected to prevent the impossible, but to protect in a way that is reasonable.

• Are temporary or permanent COVID-19 prevention installations (such as acrylic barriers) posing any risk of injury? Were they installed to manufacturer’s standards or recommendations?
• Are your customers waiting on organized lines inside or outside your business? If so, have all reasonable measures been taken to ensure they are safe from injury while on your property, or adjacent property they may be lined up on?
• Have you posted signage at your locations that is clear and visible to customers stating your COVID-19 potocols, and the customer’s responsibilities?

Q: What if someone thinks they may have contracted COVID-19 on my premises?

Answer: It’s prudent to put in place prevention controls, for staff and customers, then evaluate them regularly. Implement a set of best practices to put yourself in the best position possible. We’ve compiled a list of resources to review while preparing your best practices. Use these resources below.

Risk informed decision making guidelines for businesses during the COVID-19 pandemic (Government of Canada)

This provides a framework for risk-informed decision making. Business owners can use this resource to consider COVID-19 related risks associated with their business, as well as to identify and implement appropriate risk mitigation strategies.

Sector-specific resources to prevent COVID-19 in the workplace (Province of Ontario)

Sector specific guidelines that contain recommendations and tips for businesses on how to keep workers and customers safe. It also includes posters to print and display in the workplace.

Workplace Health and Safety (Province of Ontario)

Requirements for all workplaces under the Occupational Health and Safety Act. Under Ontario’s labour laws, employers must take every reasonable precaution to protect the health and safety of workers. This includes protecting workers from the hazards posed by infectious diseases.

Should an employee contract COVID-19 while at work they should be encouraged to file a claim with WSIB (where registered) or your group insurance provider to determine eligibility for coverage. WSIB also provides no-fault collective liability insurance and access to industry specific health and safety information. If you are not registered, you can learn more by clicking here.

If it’s alleged a customer contracted COVID-19 while on your premises, a notice of potential loss should be filed with your insurance company as soon as you are notified.

Q: Do I need to advise my insurer if my business premises is shut down?

If your plan is to remain closed, please be reminded your property insurance policy may include a vacancy clause or unoccupied restriction that will need to be reviewed. Many insureers have made accomodations due to the extenuating circumstances during the pandemic. However, each policy is unique and there may be requirements to maintain coverage while closed down. If your premises is closed and unoccupied or vacant, be sure to contact your broker to review your individual policy.

As business owners, we and our teams will need to work together to protect our own health and our clients’ health. If you have questions about liability or any other aspects of the insurance for your business, contact us today.