Resnick & Louis Partner, Shari Goggin, was interviewed by NAFA Magazine on Reopening Fleets after COVID-19

Legal Viewpoint for Reopening Fleets after COVID-19

The Legal Viewpoint for Reopening Fleets After Covid-19

Organizations are in a bind after more than two months of stasis during the Covid-19 Pandemic. They seek to reopen their work, including their fleets, but clear and unanimous direction is not easily found. Federal expectations clash with regional concerns and a multiplicity of opinions from municipalities. Medical sources say it is way too soon to reopen safely. What is clear above all is that companies need to abide by what is legally required of them. To do otherwise is very dangerous and could be costly.

NAFA spoke with regular legal contributor Shari Goggin. Goggin, a partner at Resnick & Louis and has an extensive history as a trial attorney. Before her work in independent law firms, she was an attorney of record, supervisor and trial attorney at Liberty Mutual Insurance.

Reasonable

When asked about the expectations placed upon a company for the health and well-being of its employees, drivers and customers, Goggin says, “Any company must do what is considered reasonable under the circumstances. The question, of course, is ‘what is reasonable?’ It should be noted that a transport company may actually have somewhat less culpability as several of my clients deliver are considered ‘essential’ delivering ‘essential’ products and, thus, perform essential services, such as in the delivery of food and medical supplies.”

Many fleets are found in a troublesome middle-space. One wing of leadership says go ahead while the other is warning against. The warning is out there, so it is not that the company opened without that knowledge. How liable will that company be should employees, independent drivers or even customers contract Covid-19 after returning to work?

“Congressional hearings are just taking place now to find out what the specific guidelines are being established by the Federal Government, but they have not yet been established,” Goggin says. “As such, we cannot (today) base our business guidelines on what the Federal Government says because we do not know what those are yet. When those are established, I would analogize these guidelines, and perhaps ultimately laws, to the safety guidelines of OSHA or the FMCSRs. Thus, if they are not followed, civil liability may exist.

Adhering to the Standards

“Until there are actual official guidelines, we are then left to recommend what is reasonable—what is standard in the industry, what will allow a company to still operate but do so safely. Thus, if the company follows basic, common-sense guidelines such as regular, routine cleaning, allow for social distancing in the loading and delivery of products, provide personal protective equipment (PPE) such as gloves and masks (just as for all safety like proper shoes and reflective vests), I would think that while it won’t prevent a lawsuit (as nothing will) if these things are followed, a court would determine these to be reasonable under the circumstances.”

Goggin suggests the importance of having the foundational work in place, such as having the policies in writing, having the necessary documentation posted, checklists for cleaning fully established, and having the PPE easily accessible.

“If an organization establishes its own reasonable guidelines and then they are not followed, they could be found liable, just like for any other workplace accident,” Goggin says. “However, if they have established guidelines, followed those guidelines and then a driver or customer still contracts the virus, I would argue liability would not be established. To go back to basics, liability is based upon a duty, a breach of duty, proximate cause, and damages. A plaintiff/driver would have to prove all of these to recover against the company. The duty is to act as a reasonable company would act. A breach is not following those procedures, and proximate cause is still needed to show that the breach has led to the specific driver or customer catching the virus (and not from some other source) and resulting damages.”

Unintended Consequences

The requirement to clean vehicles more often introduces the possibility of stronger disinfectants being used. How liable would the fleet and organization be if the vehicles are cleaned with these without fully warning drivers of potential negative side effects, especially to drivers with pre-existing conditions like asthma?

Goggin states that, again, liability is based upon a balancing of what is reasonable. “One doesn’t burn down the house with people inside to kill a rat infestation problem in the house because those rats threaten the people inside,” she suggests. “A duty to warn arises from a known danger that is not obvious. If some odd cleaning chemical is used which may affect drivers or customers with common health conditions such as asthma or other respiratory diagnoses, a duty to warn could arise.”

However, Goggin asserts, a simple sign or sticker much like those on the outside of the product itself, should protect the company from a liability based upon a failure to warn. “Just follow the warning on the label of the cleaning product and post it,” she says.

It all comes down to the company following basic, common-sense guidelines. Step up regular, routine cleaning. Make sure social distancing is being adhered to. Communicate procedural changes being done outside of the previously known norms so that employees and customers are fully aware of these. The requirement for a greater level of transparency is not a burden so much as it keeps your employees and customers from being blindsided, and that truly is where legal troubles can begin.

Shari Goggin, Esq., has represented clients including McDonald’s, USIC, Black Horse Carriers, Eby-Brown, Darden Restaurants, Edy’s Ice Cream, Hershey’s and Liberty Mutual Insurance from the investigation stage through jury verdict, and appeal up to and including the State and Federal Court of Illinois and Texas, the Illinois Supreme Court and U.S. Seventh Circuit Court of Appeals.

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