The COVID-19 pandemic continues to reveal numerous unique and unaddressed issues each day.  While we as individuals are becoming more intimately acquainted with nuances we previously took for granted, many others—especially businesses—are confronting a myriad of problems and obstacles that would have seemed improbable just a few short months ago. Specifically, many restaurants have been faced with the choice to either restructure into a strict take-out/delivery establishment or close shop and hope they can reopen their doors in the future. Neither option is ideal, and the decision to press on conducting business carries its own set of risks that are beginning to find their way into court dockets.

In the first half of their two-part article, “Managing Employer Risk in the Age of the Coronoravirus” [1], Ian Stewart and Jana Farmer advise of the pitfalls facing those establishments that choose to press on. They wisely caution that “all organizations should be aware of the risks of civil liability for exposing members of the general public, as well as their family members, to COVID-19 and should establish reasonable protocols and procedures to minimize such risks.” Case in point, Stewart and Farmer refer to a lawsuit filed on April 6, 2020, in Illinois against Walmart, that alleges that an employee died after contracting COVID-19 at work due to Walmart’s failure to follow relevant guidelines for maintaining safe workplaces and hiring workers without appropriate COVID-19 symptom screening.

Many restaurants are undoubtedly operating under precautions to ensure their employees can continue to help the business thrive with as little risk as possible (“no contact delivery” is now available on virtually every food delivery platform). But how can a restaurant take appropriate precautions to ensure the virus is not transmitted to its customers? Are restaurants exposed to liability if an infected employee exposes its customers to COVID-19?

The short—but incomplete—answer to the latter question is “yes.” However, for the reasons detailed below, the chances of this kind of liability occurring are very slim. A good way to illustrate why is to compare COVID-19 with a virus with which Marler Clark has extensive litigation experience: the hepatitis A virus (“HAV”).

HAV is a communicable disease that most often spreads from person to person via the “fecal-oral route,” while all other exposure is generally attributable to contaminated food or water. [2]. Food-related outbreaks of HAV are usually associated with contamination of food during preparation by an HAV-infected food handler. [3]. The food handler is generally not ill because the peak time of infectivity—that is, when the most virus is present in the stool of an infected individual—occurs two weeks before illness and symptoms begin. [4]. Although ingestion of contaminated food is a common means of spreading HAV, it can also be spread through household contact among families or roommates, sexual contact, or by direct inoculation from persons sharing illicit drugs. [5]. HAV is also relatively stable, and can survive for several hours on fingertips and hands and up to two months on dry surfaces. [6] Notably, HAV is the only common vaccine-preventable foodborne disease in the United States. [7]

When Marler Clark represents individuals who contract HAV after eating at a restaurant, the most common situation we encounter is that an unvaccinated employee worked while shedding the virus, but was asymptomatic. As the asymptomatic “patient zero” handled and prepared food, he or she unknowingly spread the virus to food products subsequently consumed by customers. Usually, the employee will display HAV symptoms about two weeks after the infectious period, but the damage has already been done; anyone who consumed food prepared by the infected employee became at risk of contracting the virus. Frequently, local health departments are able to respond to a food worker’s HAV diagnosis by publicly alerting persons who consumed food from a restaurant to obtain post-exposure prophylactic (“PEP”) treatment within two weeks after their exposure (when such treatment is most effective). However, there are always those who, even upon learning of a health department’s exposure advisory, are outside of the two-week window and, thus, PEP is no longer effective.

A restaurant becomes liable in these instances because a majority of states deem a restaurant strictly liable for any injuries caused by food it cooks (i.e. manufactures) and sells to customers. Concepts of fault and taking reasonable precautions are not taken into account. Rather, an injured patron generally need only prove that the food had some problem or defect when it was given to him or her, and that problem or defect caused their injuries. Thus, in its simplest form, a restaurant would be strictly liable to a customer who contracts HAV in a matter of weeks after consuming food from its establishment and after one of its employees became symptomatic with the virus. A highly convincing case would also include a finding that the customer and the employee (or others who also dined at the restaurant and became ill) had the same strain of HAV.

While a restaurant could theoretically also be held strictly liable if its customers contracted COVID-19, there are quite a few complicating factors that make this highly unlikely. First and foremost is the problem of proving causation, or, put simply, how to prove that Food Item X did in fact transmit the virus to Individual Z. With HAV, a person’s infection can usually be traced back to a local restaurant if an employee of the restaurant became symptomatic within the relevant time frame. Additional proof will certainly benefit a claim, but those two factors generally lay the groundwork for proving causation.

COVID-19’s nature, however, substantially undercuts the simplicity of the HAV example. For instance, imagine if three local restaurants all had employees become symptomatic with HAV at the same time and a person ate food from all three in the same week. Absent specific identification of the HAV strain, there is no way to prove which restaurant actually exposed the person to HAV. Now consider the fact that, just like HAV, a person can be asymptomatically spreading COVID-19 [8] but they never develop symptoms. Given the current prevalence of COVID-19 and, in many cases, the inability to determine who is actually carrying the virus, there is simply no way to eliminate all possible exposures to COVID-19 and thus, no way to convincingly claim that Individual Z got infected due to exposure to Establishment Y.

Another factor that renders strict liability unlikely is the fact that COVID-19 is spread predominantly through respiratory droplets produced when an infected person coughs, sneezes or talks. [9]. While the virus can survive on some surfaces (72 hours on plastic, 24 hours on cardboard) [10], it is unlikely to be able to survive on food itself according to an expert in infectious diseases and public health at Cornell University. That being the case, the most probable exposure to COVID-19 is not through consumption of a product. A critical piece for strict liability is that the manufacturer’s product caused the injury alleged. Therefore, a strict liability claim is unlikely to succeed if a person is infected with COVID-19 through exposure to an ill restaurant employee or through contaminated food packaging.

Finally, while it is possible a restaurant could be held liable under principles of negligence, proving as much would be a steep uphill battle, especially without any egregious conduct by a restaurant. Unlike strict liability, negligence requires that a plaintiff also prove that there was some shortcoming in the restaurant’s conduct and that, but for that shortcoming, the injury would not have occurred (or, in legal terms: the restaurant had a duty to the customer and it breached that duty in some way). Due to the nature of HAV, negligence is particularly difficult to demonstrate because of the ability of an infected person to shed the virus without even knowing it. If no one knows the employee is sick (including the employee herself), how are they to take appropriate precautions to prevent transmission? The same rationale applies to COVID-19: if an employee is asymptomatic, how is a restaurant to prevent transmission without shutting down entirely? Further, while a reasonable argument exists that restaurants can prevent employees unknowingly infected with HAV from working by requiring all staff to provide proof of HAV-vaccination before hiring (or offering to cover the costs thereof), there are no vaccines currently available for COVID-19.

Thus, a restaurant would only likely be found to have negligently transmitted COVID-19 under extreme circumstances. Common ways to show negligent transmission of HAV in a restaurant setting include things demonstrating that there were no safeguards in place to prevent transmission from an employee to food: food workers were handling ready-to-eat food items without gloves, no significant employee handwashing policy, or that employee handwash stations were not appropriately stocked. While all these factors may be equally applicable to negligent transmission of COVID-19, their persuasiveness also requires (and assumes) that an infected employee was identified and worked while infectious. Given the foregoing discussion about COVID-19’s unique nature, it certainly seems that a restaurant may only be held liable for negligent transmission of COVID-19 if it knowingly allowed an infected individual to work while infectious; a significantly demanding burden of proof for any claimant.

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[1] Stewart, Ian and Farmer, Jana, “Managing Employer Risk in the Age of the Coronavirus – Part 1,” Property Casualty 360 (Apr. 9, 2020). https://www.propertycasualty360.com/2020/04/09/managing-employer-risk-in-the-age-of-the-coronavirus/?slreturn=20200309100124

[2] Jaykus Lee Ann, “Epidemiology and Detection as Options for Control of Viral and Parasitic Foodborne Disease,” Emerging Infectious Diseases, Vol. 3, No. 4, pp. 529-39 (October-December 1997). Full text of the article is available online at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2640072/pdf/9366607.pdf

[3] CDC, “Hepatitis A,” supra note 5; See also CDC, “Surveillance for Acute Viral Hepatitis – United States, 2007, Morbidity and Mortality Weekly Report, Surveillance Summaries, Vol. 58, No. SS03 (May 22, 2009) at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5803a1.htm

[4] Fiore, Anthony, Division of Viral Hepatitis, CDC, “Hepatitis A Transmitted by Food,” Clinical Infectious Diseases, Vol. 38, 705-715 (March 1, 2004). Full text online at http://www.cdc.gov/hepatitis/PDFs/fiore_ha_transmitted_by_food.pdf.

[5] Id.

[6] Feinstone, Stephen and Gust, Ian, “Hepatitis A Virus,” in Mandell, Douglas, & Bennett’s PRINCIPLES AND PRACTICE OF INFECTIOUS DISEASES, Fifth Edition, Chap. 161, pp. 1920-40 (2000); Mayo Clinic Staff, “Hepatitis A,” (last updated Sept 1, 2011). Articles available online at http://www.mayoclinic.com/health/hepatitis-a/DS00397.

[7] CDC, “Hepatitis A,” in EPIDEMIOLOGY AND PREVENTION OF VACCINE-PREVENTABLE DISEASES (also known as “The Pink Book”), Atkinson W, Wolfe S, Hambrosky J, McIntyre L, editors, 12th edition. Chapter available online at http://www.cdc.gov/vaccines/pubs/pinkbook/hepa.html.

[8] “Clinical Questions about COVID-19,” Centers for Disease Control and Prevention (updated Mar. 30, 2020). https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html; “No Signs of Coronavirus? Here’s Why You Could Still Be Carrying (and Spreading) It,” Health Essentials, Cleveland Clinic, (Apr. 4, 2020). https://health.clevelandclinic.org/studies-show-carriers-with-mild-or-no-symptoms-are-key-part-of-covid-19-spread/; Rettner, Rachael, “Up to 25% of People with COVID-19 May Not Show Symptoms,” Live Science (Apr. 1, 2020). https://www.livescience.com/coronavirus-asymptomatic-spread.html

[9] “How COVID-19 Spreads,” Centers for Disease Control and Prevention (last reviewed Apr. 2, 2020). https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html

[10] “Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-Cov-1,” NEJM, (Mar. 17, 2020). https://www.nejm.org/doi/10.1056/NEJMc2004973