A US viewpoint on the legal issues brought about when living with Covid-19

A US viewpoint on the legal issues brought about when living with Covid-19

Just six months ago, the topic of cleanliness and hygiene in the travel industry was largely a given.

Save for occasional stories of illnesses on cruise ships or bed bug outbreaks in hotels, in general travelers around the world have been getting on planes, checking into hotels and private accommodations and riding in cars without any thought as to whether that experience could make them sick. 

Like so many other aspects of daily life, COVID-19 has changed that. 

Now brands are fast-tracking hygiene initiatives detailing the steps they are taking to ensure a guest’s every touchpoint is, literally, clean. 

With catchy names – Hilton’s CleanStay, Accor’s ALLSafe, United Airline’s CleanPlus – and high profile partners (Hilton with Lysol and the Mayo Clinic, United with Clorox and the Cleveland Clinic) these efforts provide a visible signal that the brand is prioritizing the health and safety of its guests.

And, say legal experts, these detailed policies could provide some protection should there ever be claims to the contrary.

But what about in the fragmented short-term rental industry, where there may be a homeowner, a property manager and a booking platform (or platforms) – how is this issue being addressed and where would the liability lie if a guest claimed he contracted the COVID-19 virus while staying in a private property?

Cleaning considerations

Andrew Bate, founder and CEO of vacation rental insurance provider Safely, says property managers are struggling to figure these complex issues.

“They are getting different guidelines every single day – through tweets from the government, from the World Health Organization, from the Centers for Disease Control,” he says.

“We’re advising our property managers if there are standards your local government is releasing for hotels and restaurants, try to meet that standard. Do the extra cleaning, show you are using protective equipment... that shows you are meeting that duty care and should decrease liability.”

Bate says he also sees value in the cleaning certification services being offered to vacation rentals since that also shows an effort to mitigate risk.

Attorney Brendan Sweeney says his clients that own rental properties are doing deeper cleanings now, but since the understanding of COVID-19 transmission is continuing to evolve, he has advised them to be cautious in their communications.

“As an attorney I’ve tried to gently tell them there’s only so much you want to say or put in writing,” he says.

“Say you’ve cleaned it thoroughly or the best we can, that’s all you should say. I wouldn’t advise an owner to say we’re ‘COVID-free’ because it’s all too uncertain right now.”

Humphrey Bowles, co-founder and CEO of short term rental insurance company Guardhog, says he believes cleaning practices for most properties have been appropriate long before the coronavirus crisis, so while awareness is greater than ever, very little will change in a practical sense.

“Maybe people will use an extra shot of disinfectant,” he says. 

In April, Guardhog launched a new trust and verification platform for rentals called Superhog, which addresses the issue of trust that is at the root of the cleanliness topic. 

“When you stay in someone’s home you are in a position of vulnerability, and you are relying on that host, that owner, that property management company to have properly cleaned that home in case there might have been COVID there beforehand,” he says.

“We are able to demonstrate how many times within this ecosystem that transactions have gone exactly as expected. We can use that to identify the bad actors and the great hosts and guests, and then we’re able to foster those guys and show them as being the right people to be transacting with.”

Insurance impact

Generali Global Assistance provides travel insurance to a variety of customers, including Vrbo.

Chief Operating Officer James Sion says while it would be difficult to prove that a guest became infected with COVID-19 during their stay in a particular rental, it is important for travelers to be aware of the policies that are in place.

“I can’t speak to whether or not there would be liability to owner or management company of a vacation rental should someone become injured or ill. But if I am traveling or anyone is traveling, they would want to make sure they are properly protected by insurance,” Sion says.

“And as well as any vacation rental they are going into, they should insure there is proper insurance for liability or other types of injuries they might encounter.”

Attorney Kevin Parker says from the homeowner and property manager’s perspective, he expects the COVID crisis is spurring a “wholesale review of contracts.”

“I think not just this business but every responsible business is reviewing their insurance policies, liability, making sure they get verification that they are covered,” Parker says. 

“And I think we’ll also see people reviewing their disclaimers and waivers in terms of contracts being signed with the guest. I think we’ll see more prominent waivers, with a mandatory click instead of it’s in there and nobody has to affirm that they’ve read it.” 

Sion says he expects this crisis may also spur revisions to existing insurance products and the development of new ones. Bate agrees, saying it is similar to the development of products to cover claims of injury from bed bugs. 

And Sweeney says it’s not unlike the development of new insurance products after the September 2001 terror attacks.  

“Prior to 9/11, terrorism risk policies were not very common at all. After 9/11, the government-backed terrorism risk insurance. Everyone I’ve talked to is thinking there will be a government-sponsored pandemic-type insurance,” he says. 

Legal issues 

On the question of liability as it relates to infection, expects say that answer may have to wait until a legal claim is adjudicated on this issue.

“I think when a court has to address it in the first instance, the trend might be in favor of the renter-tenant because a court might say to the landlord, ‘You’ve had plenty of time to understand this and figure out what’s appropriate in terms of hygiene and cleaning protocols. You’ve had your chance. And it’s invisible, so how could a tenant know,’” Parker says.  

And, he says, a cleaning company that has provided a certification could also be held accountable.

“If a cleaning company allows the owner to put a certification on their marketing materials, that provides another pocket for injured person to sue,” he says. 

“Of course most of those service providers have disclaimers. They limit their liability to the amount you paid them, because they’re not dumb.”

And could responsibility trickle farther down the chain of parties involved in a rental transaction? Bate says that could be tested.

“In the United States, we are conditioned to sue, and we sue the people with the biggest pockets,” he says. 

“Vrbo has deep pockets being part of Expedia, Airbnb has deep pockets, so they will always be in the mix of who could be liable, as least when a lawsuit is being filed.”