ABQ attorneys offer these tips for dealing with Covid-19 liability issues:
By Collin Krabbe – Technology reporter , Albuquerque Business First, May 18, 2020,
A few months ago, if you had asked Albuquerque business attorney Larry Donahue if an illness such as the flu would open your company to legal liabilities, he would have offered a short response.
“I would have giggled and said ‘I don’t think so,’” said Donahue, an attorney at nationwide law firm Law 4 Small Business in Albuquerque.
But in a world navigating Covid-19, things are changing, he said. Companies looking to reopen after months of coronavirus-related closures face a flurry of new civil liabilities.
A company could face a lawsuit should a customer become infected. Employers unaware of recent legislative changes may violate the rights of their employees unknowingly.
Restrictions put in place by the state government in March closed many “non-essential” businesses and limited food establishments to carryout and delivery only. Some “non-essential” retailers have since been allowed to partially reopen. Other establishments — salons, gyms, indoor malls and other businesses — will have to wait until June 1 at the earliest before some restrictions can be eased.
While many business owners may be eager to get employees back to work, not taking the right precautions could be costly, especially if people start becoming infected. In the event of a wrongful death suit, damages “can easily be in the millions,” said Albuquerque employment attorney Deena Buchanan, managing partner at Buchanan Law Firm.
Here are the top tips from three Albuquerque attorneys on mitigating the risk of being sued by an employee or customer after reopening:
1) “Consider the state guidelines as the floor, not the ceiling,” to protect yourself from someone who says they caught coronavirus at your business.
- In addition to the state’s measures, businesses that reopen during the pandemic should work to find solutions specific to their operation that may further stop the spread of coronavirus, said Buchanan.
- “The question is whether you are taking reasonable precautions,” she said. “You also have to think about how your individual business works.”
- Businesses where people are in close contact — such as salons and gyms — may be able to reduce liability by using virtual payment tools and closing off sections of an indoor space, Buchanan said.
2) Read — and understand — Families First Coronavirus Response Act.
- The federal FFCRA requires some employers to provide employees with paid sick or expanded family and medical leave for certain reasons related to the coronavirus.
- If an employee is quarantined or experiencing symptoms and seeking a diagnosis, employers must provide two weeks of paid sick leave at the employee’s regular rate of pay, according to the U.S. Department of Labor.
- If an employee needs to care for an individual being quarantined, or child whose school or care provider is unavailable because of reasons related to the coronavirus, employers must provide two weeks of paid sick leave at two-thirds the employee’s regular rate of pay, according to the FFCRA. Those caring for a child are eligible for up to an additional 10 weeks of paid expanded family and medical leave.
- The law applies to “certain public employers, and private employers with fewer than 500 employees,” according to the DOL.
3) Keep an “incident log,” which will strengthen your case in the courtroom.
- Being able to provide a log of every coronavirus-related incident — like that time you asked an employee or customer to leave because they seemed ill — will bode well for your business in court, Donahue said.
- “Usually when there is a lawsuit, the facts are often disputed,” said Donahue. A log “allows the business to prove when [an incident] actually happened, what was actually said and what was really done.”
4) Make sure any incidents are reported to the right authorities, and be conscious of employee privacy.
- Employers will want to make sure they report all incidents of Covid-19 exposure to the correct authorities, said Albuquerque employment lawyer and University of New Mexico lecturer Amelia Nelson.
- Certain entities can disclose health information without an individual’s permission if doing so is necessary to protect the public health, according to the U.S. Department of Health and Human Services.
- Nelson expects the laws regarding the disclosure of health information to change as the economy reopens, and said companies should consult with a legal professional before taking action.