While accommodation establishments grapple with record low occupancy
levels, slow recovery, and health and safety protocols, there is another worry
looming in the background – how do you protect yourself from potential COVID-19
litigation? Is an accommodation establishment liable if a guest falls ill? And
what steps can an establishment take to make sure they are never on the wrong
side of a negligence claim?
Insurers offer cover for pretty much any incident, accident or sudden
illness on your property; they no longer offer liability cover for
COVID-related cases – leaving clients vulnerable to a potential lawsuit.
What then can operators, guesthouses, lodges, hotels and B&Bs do to
mitigate their risk during a global pandemic that may well become
endemic?
According to corporate, commercial and contract attorney, Stefan de
Beer, in a negligence claim, business owners will need to show that they
took all reasonable steps to protect their patrons and guests from COVID-19 –
but that burden of proof rests with the claimant.
“Negligence comes down to an objective test,” says De Beer. “What would
the reasonable person in your position do? This is not someone who is an
expert, or someone who has endless resources. It’s someone with similar access
to resources, information and experience as you have: what would they do? The
rule of thumb is that he who alleges must prove. If someone alleges that you
are negligent, they must prove that allegation. Keeping records of all efforts
made and information around the events in question will, however, only make it
easier to disprove allegations of negligence.”
Any successful claim of negligence will come down to an intentional or
negligent breach of duty of care. You can minimise the possibility of
litigation by following a few key steps:
- Update your paperwork
Have you updated your contracts and terms and conditions to meet
post-COVID traveller needs? Your contract – and related T&Cs – will be your
first line of defence against possible litigation. There is no ‘one size fits
all’ solution as every business is different, so look carefully at your own
situation and consider:
- Your refund policy if a guest’s stay is
impacted by a COVID incident out of their control.
- Waiving penalty fees due to travel bans/travel
restrictions out of a guest’s control.
- How to deal with penalty clauses, for example,
if a guest is turned away at the airport due to fever (i.e. fails medical
screening).
- A provision in your T&Cs that
guests/participants are obliged to undergo testing and remove themselves
from the tour/group until a negative test result is received.
- Disclaimers/indemnities that offer a layer of
protection against COVID claims – if standard, reasonable measures are
taken to avoid the spread of COVID-19.
Once you have looked carefully at your own business’s operational needs
and formulated your T&Cs, it is important to get an attorney to assist
you in finalising the contract.
- Follow strict health and safety protocols
The National Disaster Management Act lays out certain regulations around
gatherings, social-distancing, curfews, testing, self-isolation, quarantine and
the wearing of masks. This is law and has to be followed. In addition, the
Tourism Business Council of South Africa (TBCSA) has a comprehensive list of
health and safety guidelines in place – and these demonstrate that that you are
taking all precautions necessary against COVID-19.
While the TBCSA guidelines are not legal requirements, if you have made
the pledge that you will follow the protocols – and you have received your
stamp of certification that confirms you are compliant – you are bound to the
protocols. In other words, if you portray your business as fully compliant,
then you can be held liable if found negligent in your duty of care.
- Have a plan of action
Imagine the scenario; a guest arrives at your guesthouse displaying
COVID symptoms, or arrives symptom-free but has received word en-route that
they have been exposed to a close family who has just tested positive for
COVID-19. Do you have a plan of action?
According to the law, anyone displaying symptoms, or who was within an
enclosed space for more than 15 minutes with a COVID-positive individual
without PPE, must isolate.
This means isolating guests in their room, providing room service,
access to COVID testing, access to medical care if necessary, and PPE
(including a medical kit with pulse oximeter if possible). Ensure that you have
developed a good relationship with your local health authority – and know
exactly whom to call for testing and support. SATIB clients have the added
benefit of just calling SATIB24 Crisis Call, who will guide you through any
protocol.
- Draw up SOPs
A standard operating procedure (SOP) is a great way to ensure that all
staff know the process – and their responsibilities – should a COVID-19
incident occur. An SOP leaves no room for interpretation and describes the
necessary steps to take (in accordance with government regulations) should a
guest fall ill.
An operator or establishment can draw up SOPs to cover (for example):
- Health screening and recording keeping,
- Steps to take if a guest arrives displaying
COVID symptoms,
- Steps to take if a guest comes down with
symptoms during their stay,
- Steps to take if a member of staff becomes
ill/displays symptoms, and
- Steps to take if a guest refuses to follow
agreed protocols (for example, wearing a mask in public).
- Enforce COVID-compliant behaviour
But an SOP is not worth the paper it is written on if it is not followed
to the letter. Model COVID-compliant behaviour, ensure that each and every
staff member follows your agreed protocols – and ask your guests to do the
same. No one is exempt from wearing masks in public areas, for example; it is
the law. Have it clear in your contract, T&Cs, check-in information – and
signage around your establishment.
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