Can Hotels Mitigate the Liability Risk of Operating During a Pandemic?

By Randall Bassett and Drew Bell

As states reopen their economies and federal officials debate protection from coronavirus-related lawsuits for businesses, hotels need information on what to do as they prepare for travel to resume.

The risk of contracting COVID-19 might diminish as the curve bends downward, but the risk that remains can create legal liability. Indeed, plaintiffs’ lawyers already have filed lawsuits against companies alleging they were negligent in failing to protect customers from the coronavirus. Hotels face heightened risk because their customers inevitably share rooms, common areas and fitness centers—and air in some instances—even if employees and customers try to practice social distancing.

To limit the likelihood of such lawsuits, owners of hotels should understand the legal risks presented by COVID-19 and consider ways to mitigate them.

Know the rules of your state and local authorities regarding hotels. Most states have issued executive orders that provide specific requirements to be followed to reopen retail establishments generally. These are the starting points to limit legal liability. Failure to follow these requirements can subject you to civil penalties and fines and may be used to argue that you were automatically negligent in a lawsuit.

Some states have published guidance and health protocols specific to hotels. For example, the Illinois Department of Public Health publishes guidance for hotels to prevent the spread of COVID-19 on its website. Also, the West Virginia Department of Health and Human Resources publishes its own Guidance for Hotels, Motels, and Other Lodging Facilities. If your state has issued guidance specific to hotels, it is important to follow it.

Of course, many hotels include restaurants, bars, gift shops, fitness centers and other facilities. Hotel owners must be aware of and adhere to the guidance specific to these facilities if they will be open and available to customers at the hotel. Many states have published guidance specific to restaurants, and you should follow this guidance in your hotel’s restaurant. For example, Texas and Georgia have both issued guidance for restaurants reopening in the wake of COVID-19. Also, some states, like Texas and Tennessee, have published guidance specific to gyms and fitness centers, which should also be followed. State requirements can be found on the governor’s or state health department’s website, and local health departments may also offer guidance.

You should not only adhere to the specific protocols addressing hotels and related facilities but also the protocols required to protect employees. Your customers will interact with your employees and vice versa, making all protocols important to minimize the risk of transmission. Because these requirements may not specifically address hotels but more broadly address retail businesses open to the public, you should consider what additional steps specific to your facility may be appropriate.

Customize your protocol to address your operation and do not stop at minimum requirements. In addition to state agencies, the Food and Drug Administration, the Centers for Disease Control and Prevention, OSHA and other federal agencies offer advice and protocols to businesses.

The elements of effective protocols reported by different health agencies can be divided into five parts:

  • Personal hygiene: Regular hand washing for 20 seconds or more using soap and water; avoiding touching eyes, nose and mouth; and never handling equipment with bare hands. Employees should consider face masks, single-service gloves and other protective equipment. Other elements of personal hygiene include screening employees and customers for symptoms of COVID-19.
  • Cleaning and disinfecting: Use appropriate cleaning and disinfectant products, as well as personal protective equipment (PPE), to clean and disinfect rooms and high-touch surface areas throughout the building. Be sure to use disinfectant products that have been preapproved by the EPA for use against COVID-19. This includes doors, elevators, counters, furniture and any restaurant tables. The restrooms will require more regular cleaning and disinfecting. Linens may also become contaminated by the virus, so it is important to add disinfectant when washing laundry and to wash bedspreads frequently.
  • Social distancing:  Current guidelines require six feet of separation in all common areas. You can inform customers of other social distancing precautions with signs, floor markings and other visual cues. The use of face masks and face shields are another form of social distancing, as well as non-touch payment methods.
  • Training and monitoring: No protocol is effective if not followed, so training and monitoring is critical. Even after completing initial training, regular shift meetings should include a reminder of the protocols. Managers should monitor compliance for both employees and customers and adjust emphasis as warranted. A successful protocol requires your team and your customers working together.
  • Records and tracing:  It is important to trace, to the extent possible, who has been in contact with infected individuals who have visited the hotel. You should implement a record-keeping process to maintain records of guest and employee visits to the hotel, including guest registration records, employee work assignments and electronic lock records.

Know the risks of legal liability in your state. Developing and implementing a sound protocol will not prevent you from being sued if a customer develops COVID-19.

Every state has its own standard of care that a hotel owes its customers, but most focus on whether the business owner exercised reasonable care to avoid the risk and whether the customer was aware or on notice of the risk in visiting the property.

A hotel usually can satisfy its obligation by mitigating the risks through appropriate protocols and by warning of the danger. An adequate warning includes a statement that protocols cannot guarantee the safety of customers.

Various state agencies contain their own qualifying language that may be adapted. For example, the Texas Department of State Health Services states the following: “The virus that causes COVID-19 can be spread to others by infected persons who have few or no symptoms. Even if an infected person is only mildly ill, the people they spread it to may become seriously ill or even die, especially if that person is 65 or older with preexisting health conditions that place them at higher risk. Because of the hidden nature of this threat, everyone should rigorously follow [the protocols being used on the premises, all of which facilitate safe and measured mitigation of the risks]….”

While there is no way to guarantee your hotel will not be sued over COVID-19, we believe these considerations reduce the possibility of being sued and provide you the best chance of prevailing if a lawsuit is filed.

Randy Bassett is a partner and first chair trial lawyer with King & Spalding LLP. Over his 27 years in practice, he has tried more than 30 high-exposure product liability and personal injury cases to juries in federal and state courts throughout the southeastern and southwestern U.S.

Drew Bell is a senior associate and trial lawyer with King & Spalding LLP. He has represented businesses in more than 20 high-stakes personal injury and wrongful death trials.

This is a contributed piece to Hotel Business, authored by industry professionals. The thoughts expressed are the perspective of the bylined individuals.