When can growers be held liable for COVID-19 transmission?

by Courtney Llewellyn

Known mostly as an airborne virus, COVID-19 is still a concern for many, even as states continue through their various phases of reopening. That means it’s still something both producers and consumers need to consider.

Farm Commons, a resource that fosters the discussion and connections that build a strong legal background for the farming community, offers a free hour-long webinar on “Liability for COVID-19 Transmission to Customers of Farm and Food Businesses” on its website. Answers to questions on customer safety and insurance coverage were provided by Rich Levine, a staff attorney.

“The big question is, ‘If somebody believes they got COVID from my farm, will I be liable?’” Levine stated. “The short answer is probably not.”

Levine used various hypothetical situations to explain that stance. In the first, a customer believed they contracted COVID-19 from you or one of your employees from farm stand sales, an on-farm event, a farmers market or CSA delivery/pickup. Levine said the risk here is not very big, because it’s hard for anyone to make the case that you or your farm is the definitive source of an infection. “For the average person, there are a lot of places they could’ve come into contact,” he said.

However, you would be liable if you were negligent – if you acted less reasonably than the average farmer would have acted under similar circumstances. If you take the prescribed safety actions (frequent hand washing, wearing masks, social distancing, displaying safety signage) and establish a routine for sanitizing surfaces touched by customers and employees (and keep track of the cleaning, as paperwork will help if there is a lawsuit), your liability is very low.

If a customer believes they caught the coronavirus from another customer, it’s still not a very big risk, as again, it’s difficult to identify exactly where exposure happened. You can take precautions to keep distance between customers, including limiting the number allowed at your farm stand or farmers market space at one time.

And, if a customer believes they got COVID-19 from food from your farm, the risk to you is very low, because there is very little evidence to support the idea that the virus can be transmitted by food or food packaging, according to Levine.

The most important thing you can do to protect yourself is “let people know some of the risk of coming onto the farm is their responsibility,” he stated.

As for insurance considerations, Levine noted you may already be covered under your general liability (farm policy) insurance. You should check for exclusions, discuss concerns with your insurance agent (and get answers in writing) and even consider a review of your policy by an attorney. If you work off the farm (through CSA pickups or farmers markets), you may require one or more additional liability policies.

Levine noted that some states have created laws or rules that protect businesses from liability for COVID-19 infections even when a business was negligent about its safety practices. In some states, the protection only applies to essential businesses; in other states, it applies to most or all types of businesses. “It remains to be seen whether any kind of business immunity law will go through at the federal level,” he added.

For more information and free resources on this topic, visit farmcommons.org.

2020-06-24T14:40:27-05:00June 24, 2020|Grower, Grower East, Grower Midwest, Grower West|0 Comments

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