For the last two months, lay-offs, the CERB, the CEWS, employee safety, and complying with public health directives have been the focus of employers during the COVID-19 pandemic. Now, with Ontario beginning the process of “re-opening”, businesses with public facing services need to shift their focus managing the risk of operating in a pandemic and ensure they do not inadvertently expose themselves to more familiar forms of liability.
Many businesses in the retail and service industry have been shuttered for the last two months. In some cases they may have been operating limited delivery options, or “curbside” pick up. With restrictions being lifted on some industries, it is expected that these businesses will begin to see more foot traffic in and around their stores.
With this return to normal, there are several forms of traditional risks that still need to be managed.
Occupiers’ liability claims
As storefronts and public facing businesses re-open, more customers are expected to be on or near an organization’s property. In Ontario, every occupier of a premises has the obligation to take active steps to ensure that their premises are reasonably safe for individuals attending the property. The most common source of these claims are slip and falls, or trip and falls. Storefronts have been closed for two months. Your business may be re-opening with a skeleton staff. Entry ways may have been vandalized, new store layouts may be implemented, or employees attempting to manage new COVID-19 precautions may forget to do other store maintenance duties.
In order to lower the risk of these sorts of liability claims, employers should be reviewing the status of their premises in the first few days of re-opening. Ensure that your team is performing their usual routine maintenance. Ensure that new configurations of the store do not create any new risks for customers. Example: Does having customers line up in store bring them near to an open stairwell they would have ordinarily avoided?
Motor vehicle claims
With the closure of Foodora’s delivery services in Canada, and a growing resistance to the higher service fees presented by UBER Eats, many businesses have enhanced, or implemented, in-house delivery capabilities. Using employees to deliver products brings its own unique risks for employers. If those employees are involved in an accident during the course of a delivery, an employer will face exposure because they are vicariously liable for the actions of their employees. Businesses that are considering putting their employees on the road should ensure that they have policies and procedures in place to reduce the risk of at fault accidents. A call to your insurer or broker to discuss the new programs is in everyone’s best interest. From an insurance perspective, implementing a delivery program is a change that an insurer might consider “material” and may impact coverage if not reported.
Long-term disability claims
Disability claims are expected to rise in the future. Claims involving impairments due to mental health issues have steadily risen as society has recognized the impact depression and anxiety can have on worker productivity. It would not be surprising to see an increase in claims relating to burnout and anxiety. Employees must endure a global pandemic while working from home, adapting to unsupported childcare, and managing household tasks. These can be significant burdens that can lead to significant health concerns if not managed. Employers will need to ensure they maintain their pre-pandemic obligations of investigating mental health concerns, accommodating where possible, and referring employees to submit a claim to their disability carrier, if appropriate. At the same time, employees need to be aware of their ongoing obligations to cooperate and engage in reasonable accommodation efforts made by employers.
Final thoughts
Operating a business of any size is a challenge. Operating a small or medium business during a pandemic is overwhelming. Attempting to pivot your operations to a “new normal” or mitigate losses associated with new health guidelines can consume an organization’s entire focus. Despite this, we cannot lose sight of the traditional risks that need to be assessed and managed. As businesses re-open to the public after a long closure, it may be worth having employees review the standard operating procedures of the business with management. Any new practices, such as deliveries, should be reviewed to ensure that these services are being conducted in a safe and prudent manner.
As they say, an ounce of prevention is worth a pound of cure. Preventing a fall, ensuring adequate driver training, and effective human resources management is markedly easier than dealing with eventual litigation.
Devan Marr
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