COVID-19 Litigation: What Hotels Have Learned and How to Mitigate Future Exposure | Rumberger | Church

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With travelers returning to hotel destinations across the world, threats of COVID-19 contamination continue to expose the hospitality industry to various legal risks. With more than 2,000 COVID-related cases currently recorded in the United States, the risk remains, particularly in the areas of negligent exposure and work and employment. This article will look at some of the increased legal risks for the hospitality industry and some suggestions for mitigating or reducing exposure to COVID-19-related lawsuits.

After more than a year at home in numerous jurisdictions, travelers are desperate to return on vacation, vacation, and a night’s sleep to get away from their daily grind.

Short-term rentals like Airbnb and VRBO saw astronomical increases in late 2020 and early 2021, but guests are now returning to the ease and comfort of their favorite hotel chains. Hotel stock prices are rising, properties are partially reopening, and the hospitality industry is hiring again.

But while rooms are booked, some at higher prices due to demand, hospitality management and executives must tire of new or increased responsibility in the wake of COVID-19. Understanding these legal exposures and managing these emerging risks are critical to the success of the hospitality industry recovery. While owners are not their customers’ insurers, hotels may have an increased obligation to their customers with respect to the known risk of COVID-19.

Most states follow a general standard of negligence: a hotelier or landowner should (1) keep the property in reasonably safe condition and protect guests from dangers that the hotel is or should be aware of; and (2) to alert the guest to hidden dangers that are or should be known to the hotel and unknown to the guest.

What is reasonable?

What is reasonable with respect to bodily injury claims related to COVID-19 will be assessed taking into account the standards in effect at the time. For example, what was reasonable in February 2020, before most of the world understood the risk of COVID-19 or the science of transmission, will be different from summer 2020 and spring 2021, when news of the variant Delta struck. .

When is a warning required?

Certainly everyone has heard of the virus and the ongoing pandemic. An argument could be made that customers should be aware of the risks of COVID-19 or that they could discover the risk of COVID-19 by doing due diligence. But the investigation does not end there. What if the hotel becomes aware of exposure to COVID-19 and fails to notify guests who may have been in contact?

Best practice, which is mandatory in some states, is clear and visible warnings at points of entry and community gathering places of the existence of the virus and reasonable precautions related to sanitation, hygiene and social distancing. Signage should not display a false sense of comfort or security and should adequately inform customers of the risk.

Will reasonable precautions and warnings protect the hospitality industry from lawsuits? Certainly not. Waves of litigation related to COVID-19 claims for negligence, employment issues and insurance policies have started to progress. In fact, according to Penn Law’s COVID Coverage Litigation Tracker as of September 27, 2021, at least 2,053 lawsuits related to COVID-19 have been filed in the United States.

As of the date of this publication, the majority of these cases were related to business disruption or earnings, but hundreds related to contamination, civil authority, work and employment, and personal injury. have followed and continue to be filed. Keep in mind that 207 of these cases are class actions, meaning they have multiple claimants, so the number of legal claims related to COVID-19 outweighs the actual number of cases filed.

Some of the legal risks facing hoteliers are not new, but have been magnified by the pandemic. COVID-19 has created a niche market for negligent exposure claims. In order to defend such a claim, as stated above, a hotel will need to exercise due diligence at the time of the incident (exhibition). While most health and safety standards remain fairly constant over time, COVID-19 has presented us with a world in which we have tune in to Dr Anthony Fauci’s daily briefings.

Consider for example the CDC’s constantly evolving sanitation protocols, mask policies, recommendations related to the size of gatherings, or food preparation standards: failure to meet commercial reasonableness related to health and safety. security is a recipe for litigation. Savvy management will adopt the changing COVID-19 guidance provided by government agencies and create consistent policies and procedures that are regularly communicated to employees and guests.

This means a dedicated staff monitoring changes in health and safety standards, creating evolving policies related to the hotel’s due diligence, and constant communication of changing standards to employees and guests. The performance of sanitation and disinfection should be well documented. Records should be compiled and reviewed by management regularly to ensure hotel health and safety standards are met. Hoteliers with the means should consider partnering with healthcare providers and / or consultants to develop reasonable and reliable security policies.

While compliance does not guarantee that claims or litigation will not surface, some states, such as the hospitality-saturated state of Florida, have passed legislation limiting or providing immunity from liability for claims related to the hospitality. COVID-19 if compliance with government standards is demonstrated. Under the new Florida law, FS 768.38, if a court determines that the business entity has made a good faith effort to substantially comply with any health standards or guidelines issued by the authoritative or controlling government at the time the The action has occurred, then the business entity is immune from civil suit. responsibility. North Carolina, Oklahoma, Utah, Wyoming, Alabama, Arkansas, Georgia and others have passed similar legislation. Any such limitation or immunity should prompt hotel management to strictly adhere to and enforce CDC and state and local guidelines.

Another source of litigation amplified by COVID-19 are employee complaints. Employers must maintain safe working environments for their employees, in accordance with applicable laws and regulations. Increased care and limited exposure for employees at higher risks should be assessed. Raising awareness and developing policies to protect the privacy of high-risk individuals and the confidentiality of employee immunization status is critical, especially as numerous lawsuits based on COVID-19-related bodily injuries have been filed. by employees.

Employers should carefully review local and state policies around mask and vaccine warrants, vaccine passports, and mandatory testing policies before changing hotel policies. Policies regarding the use, provision or restrictions of personal protective equipment (PPE) should be considered. Individual rights to privacy and self-government must be carefully weighed against general health and well-being, possibly with legal advice. Eligible employers should consult the Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act regarding employees affected by COVID-19.

Protocols should be developed and implemented when a hotel learns that a guest or employee has contracted or has come into direct contact with someone with COVID-19. These policies should include standards for reporting COVID-19 cases and communicating potential exposure, while maintaining the confidentiality of protected health information, as required by the ADA and HIPAA. It also requires dedicated records related to the investigation of a possible infection or contact, as well as the documentation of prompt and reasonable corrective actions to ensure proper disinfection of the property if necessary. Government reporting guidelines should be strictly followed.

Hotel management and executives should review their insurance policies. Many liability insurance policies and business interruption insurance companies have refused coverage under a force majeure clause (force majeure) or other claimed exclusion. Risk management should be aware of its current coverage and seek clarification regarding COVID-19 related claims, obtaining additional or excess coverage as appropriate. Many insurers have adopted or are considering adopting a virus exclusion. Critical illness coverage has traditionally been an additional benefit that must be negotiated. Hotel responders should also review their group health care plans, workers’ compensation policies and long-term disability programs to see how they may be involved or excluded if the claim is related to COVID-19.

In short, the hotel industry has suffered and continues to suffer the consequences of the pandemic. Legal trends suggest litigation will continue and the long trail of COVID-19 cases will continue to grow. In order to meet this ongoing challenge, hoteliers and executives must carefully consider their exposure and develop and implement reasonable policies to mitigate additional legal exposure.

This article was originally published by HotelExecutive in the December 2021 issue and is shared here with permission for publication.

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