- So I think what's helpful to keep in mind
is what is the reasonable standard of care for businesses,
before we had the pandemic?
What was expected of them.
And in that case, they would be expected to,
if someone was hurt or injured on their property,
then the someone would be able to file a negligence suit.
And if it was found that the injury or illness
happened because of that business,
then they would be liable for damages.
With the CDC guidances, with the OSHA guidances
in terms of physical distance,
six feet apart, wearing masks and gloves.
These are all things that would be
a reasonable standard of care
that an employer could insist on
having their employees and customers do
before they walk into that place of business.
Whether it's a restaurant or a nail salon
or whatever it might be.
- Lately, we're hearing things about temperature checks,
or perhaps testing for COVID-19 or antibodies,
are those pushing any sort of legal boundaries
for someone to request that
if someone, when many of us believe
we have a reasonable right to privacy in that area?
- I think it's important
that you can still balance these two,
you could certainly do those things,
such as temperature checks and screenings in a private way
where you're not exposing an individual information out
more than absolutely necessary to protect others.
I think that there's also ways of triaging
your employees and customers,
maybe not everybody has to be subject
to the same level of testing,
whether it's the temperature checks or self reporting
that you could do in the circumstance.
So let's say it's someone that has less contact
with the public, they're not out there as much as others,
then they may not be required to have as much screening
as somebody else.
But given that what we do know about this virus,
and we do know it disproportionately impacts
on elderly population
and those who have chronic underlying condition,
I would say, be more proactive
to really address those individuals first,
with when we do have limited resources
in the testing and screening areas,
than for the entire workforce.
- You know, we're hearing stories about people worry
that it's potentially bridging on their individual rights,
and they're uncomfortable sharing too much information.
Granted this is something none of us have ever experienced,
given that we're in a pandemic now,
but it is fair for the average citizen to question things
and then perhaps proceed cautiously
because they may not know what to expect in the workplace,
or at a business.
- Right, and it might be helpful at this point
to distinguish between what an employee's rights might be
from a customer or patrons rights.
So let's say your employer says,
"I expect you to wear a face mask and gloves."
There are various things that the CDC has advised us
will help protect us with limiting transmission
of the Coronavirus.
So an employee, should they then get the Coronavirus
they wouldn't be able to sue the employer
in that circumstance.
Well, they would fall under a Worker's Compensation Fund.
But the interesting issue there,
which is a gray area,
is that typically a Worker's Compensation Fund
excludes diseases that are prevalent
in the general population.
And that's just been a very gray area right now.
And there could be some exceptions for those
that are healthcare workers or work in the lab,
or maybe even cashiers at grocery stores
that have a really high volume
of seeing members of the public
that maybe they could still qualify
for workers compensation, but if not,
then they may bring suit the same way that
a customer patron would,
where they would say, I've been exposed to this disease
because of you as an employer, as a business
failed to properly protect me at the bowling alley,
at the restaurant, at the nail salon.
And I think that's what employers are really afraid
and trying to balance right now,
is how to protect their employees,
how to protect the customers, how to...
and not be potentially subject to liability.
So, I think it's important to think about this
from an employer's perspective of where
they don't want to be subject to a lawsuit
because they didn't exercise reasonable precaution.
- You've talked about all these gray area.
And given there are so many unknowns.
What is your advice or your recommendation
to the average citizen who's watching this and wondering,
what do we do now, given that
we've never experienced this sort of thing before?
- There's always ambiguity about the legal liability issue
right now.
And they are caused by Senate Majority Mitch McConnell
in the Chamber of Commerce to say
we need to have immunity, we need to have safe harbors
there's going to be a pandemic of lawsuits
as a result of this.
And I just want to acknowledge that it's very hard to prove
a lawsuit in this area, be very hard to show
that you got the virus at that business on that day
because that employer didn't exercise
reasonable prudent care.
So I think it's important to think that
if that does get stripped away,
and there is immunity,
then businesses may not act as prudently
as they otherwise were to protect the public.
So to keep that in mind regarding potential liability
and immunity and what that means
for you as a member of the public.
- Okay, Tara Sklar
from the University of Arizona, College of Law.
Thanks for your insight.
- Thank you so much.