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:  

1. 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. 

1. 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.

1. 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.

1. 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).

1. 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.

Listen to attorney Stefan de Beer, Director of Martin and de Beer Inc. in conversation with Onne Vegter, MD of Wild Wings Safaris, and Lucien Niemann, Executive Director of Africa Rescue & Africa SAFE-T as they unpack your liability and legal obligations during this SATIB-sponsored webinar:

https://www.satib.co.za/liability-legal-implications-webinar/