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Attention Small Business Owners: Is it Time for your Business to Get Back in the Office?

If your business is still working remotely, it could potentially be time to get back to the office. In order to do so, small businesses must put together a robust reopening plan to properly address any and all concerns you or your employees may have. 

 

Employers who have returned their companies to the office have done so in a variety of ways. Some businesses have mandated their entire workforce to return. Others have asked employees to return, but have not mandated it. Another group of businesses have created flexible schedules where employees rotate on when they come to the office. Choosing which path to take, if any, is unique for each business. Therefore, keep reading to receive more insight on what your company should do. 

employee legal rights
Returning to the office

 

JUSTLAW has recently surpassed 1,000 small businesses enrolled in their small business legal protection plan. Thus, our small business members have asked two questions that I am sure all other small businesses are wondering as well: (1) Am I able to require all of my employees to return to the office? (2) Can I get in trouble for any employees who are infected with COVID-19 while at the office?

 

(1) Am I able to require all of my employees to return to the office?

 

The short and long answer is yes, but it may be dependent on your state’s laws. Generally, it is acceptable for employers to condition employment on a return to the office. Exceptions do apply to employees who have a specific reason as to why they cannot return. Those employees cannot be compelled to return to the office as a condition of employment. 

 

While it is true that employers generally are permitted to mandate a return to the office, subject to state laws, that does not mean all small businesses should. There are potential issues with returning: 

 

  1. Will you mandate that everyone has to get the vaccine?
  2. Is the office large enough to follow CDC guidelines and precautions? 
  3. Will your workforce feel safe returning? 
  4. Will your workforce productivity increase or decrease as a result of returning? 

 

These are all questions worth asking yourself before you mandate a return to the office. 

 

(2) Can I get in trouble for any employees who are infected with COVID-19 while at the office?

 

If an employee contracts COVID-19 in the office or an outbreak of COVID-19 occurs in the office, small businesses can be liable for workplace safety laws such as OSHA, the Occupational Safety and Health Act of 1970

 

Are you providing your employees a safe working environment?

 

In order to protect against your business from liability of such occurrences, employers should have employees sign waivers. The waiver would state that the employee agrees to return to the office, provided that the employer provides employees with a safe work environment. 

 

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Clearly, the status of returning to the office for all businesses is still a question mark in the minds of most employers. JUSTLAW hopes this article has provided employers with some insight on whether or not your business can open up. 

 

JUSTLAW also urges small businesses to sign up for its small business legal protection plan. Continue your business with the legal security and comfort you need to be as productive as possible. 

 

Speak to a JUSTLAW attorney today to initiate your first consultation. 

 

This post is not legal advice. It is for general informational purposes only. No reader should rely on this information in any way whatsoever without first seeking legal advice. 

 

Covid-19 Vaccine, the Employers Perspective

It was only about a year ago that our pre-pandemic world changed, and employers everywhere sat up and took notice. Before March of 2020, going to work used to mean having a cup of coffee with a colleague and talking about the day. Good employees made every effort to get to work on time and do their job well. Good employers ensured their employees were safe and treated fairly. This was according to the brick-and-mortar business model we all took for granted. Then, Covid -19 hit the world.

At that point, all the rules seemed to change. A lot of confusion ensued about what was allowed and what was required. Vaccines became available and with them, a myriad of information. What was right to do? What was safe to do? What was legal? One of the biggest questions was about rights surrounding the vaccine. Did an employer have the right to require the vaccine for its workers? If an employer did not require it, could they face legal ramifications?

While this situation seemed uncertain and chaotic, the answer to this question was straightforward. Federal law states that employers do not have to require their workers to receive the Covid-19 vaccine because the vaccines are not licensed by the Food and Drug Administration. This means that employers can encourage employees to get the vaccine, but everyone has the option to accept or decline so they cannot require it.

Although this answer was straightforward, the issue of employer responsibility in the midst of Covid-19 is complex and multi-layered.

For example, while employers do not have to (and are not legally allowed to) require the vaccine, they do have to provide a safe working environment for all their workers. Employers have to show proof of providing reasonable accommodation for their employees such as remote work, protective gear, and social distancing. If these accommodations are not provided when there is a “direct threat”, then there could be legal trouble for the employer.

 

worker safety
Are you providing a safe working environment for your employees?

 

Under the Equal Employment Opportunities Commission (EEOC), the Americans with Disabilities Act (ADA) describes the pandemic as a “direct threat” which is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

Evidence of providing reasonable accommodations is required and protects the employer. On the other hand, if reasonable accommodations present an undue hardship on the employer to run the business, then the employer can require the vaccine of its workers instead. This is where things get multi-layered.

This exception to the rule stands unless the employee has a medical reason not to have the vaccine. In this case the employer is required to provide reasonable accommodation for the employee and allow their employment to continue. In addition, religious beliefs preventing an employee from having the vaccine is a valid circumstance to not have it. In this case, the employee is protected by Title VII.

For an employer, liability exposure could come under ADA, Title VII, OSHA, or Tort Liability. With the ever-changing pandemic landscape, employers need to be constantly aware of new and evolving laws. The truth is this is not simple. Everything is still changing. It is also true that despite the world’s current situation, employers are not alone. There is help. For current guidance to employers, please read this CDC page.

 

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Speak to a JUSTLAW attorney today to initiate your first consultation and receive immediate advice as to whether to hire an employee or an independent contractor.

This post is not legal advice. It is for general informational purposes only. No reader should rely on this information in any way whatsoever without first seeking legal advice. 

COVID-19 Waivers: The Benefits and Drawbacks

COVID-19 has re-shaped the way Americans conduct business. In an age where masks, social distancing, and personal hygiene separate the sick from the healthy, we all have a responsibility to each other to be extremely careful in our daily lives. That same responsibility applies to businesses all over America, as we begin to withdraw from state quarantines. However, businesses have a valid concern of “COVID” liability with every hour of operation they are open to the public. If a customer, vendor, or other constituents contract COVID after visiting a business, they may sue that business or run to social media to damage the business’s reputation. JUSTLAW is deeply concerned about this unfair treatment of businesses. Therefore, we urge all businesses to draft COVID-19 waivers.

What is a contractual waiver?

Before we dive into COVID waivers, we should first introduce the concept of a waiver. Liability waivers are contractual provisions by which one party agrees to surrender their right to sue for particular injuries. Generally, liability waivers are governed by state law. Therefore, a waiver in New York may look entirely different from a waiver in Kentucky.

Ordinarily, businesses use liability waivers to protect themselves against customers, vendors, or other patrons who may come into contact with them for business purposes.

covid and business law

Why should businesses have a COVID-19 waiver?

As you open up for business in light of your local state governments lifting quarantine restrictions, you begin to open your business to liability. Therefore, all businesses should be mindful of the impact the spread of COVID at your business could have on your company. A COVID waiver would protect you from customers or vendors suing you for contracting COVID while they interacted with your business.

As a quick note, notice, we do not mention employees. You generally cannot contractually waive an employees right to sue you for COVID exposure. Employment law will, in most instances, pre-empt such a waiver.

How can you maximize your chances of an enforceable COVID-19 waiver?

  1. Understand your states’ laws on waivers
    States vary on how businesses can draft a valid COVID waiver. Therefore, be aware of the requirements for a valid waiver in your state.
  2. Clearly identify the waived claims
    To have a valid waiver, you should explicitly express the claims that a party is waiving. Therefore a valid COVID waiver should include explicit language on waiving any negligence on behalf of your business relating to COVID. Keep in mind, you customarily cannot waive gross negligence, a higher standard than ordinary negligence.
  3. Be as conspicuous as possible
    This is one of the most important factors in having an enforceable waiver. The more conspicuous a waiver, the more of a chance a party agreeing to a contract will notice the COVID waiver. To make the waiver as conspicuous as possible, try setting it apart from the rest of the contract, bolding the lettering of the waiver, putting the waiver in capital letters, requiring a special separate acknowledgment and signature for the waiver, or drafting the waiver with such a distinct textual effect that the reader cannot miss it. If you include some of the aforementioned tips above, no one can claim that they did not see the waiver.

What drawbacks should I be aware of if I plan to include a contractual provision for a COVID waiver?

While you have solved a major legal issue relating to COVID by drafting a COVID-19 waiver, you may take on a business risk. If you use a COVID waiver, you could potentially damage relationships with vendors or push away customers. Do they begin to lose your trust if you have them sign such a waiver? Something to keep in mind if you begin to consider such.

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COVID waivers are starting to become more and more common for businesses in America, amidst the pandemic. If you want to join those businesses in having COVID waivers, let JUSTLAW help you in effectively drafting such a waiver.

In addition, check out a sample waiver that JUSTLAW attorneys could potentially use for your business:

COVID-19 WAIVER (READ CAREFULLY, AS IT AFFECTS YOUR LEGAL RIGHTS)

I acknowledge the contagious and dangerous nature of the Coronavirus/COVID-19 and that the CDC and many other public health authorities still recommend social distancing. I further acknowledge that ________ has put preventative procedures in place to curtail the spread of the Coronavirus/COVID-19. I further acknowledge that ______ can not guarantee that I will not become infected with the Coronavirus/Covid-19. I understand that the risk of becoming exposed to and/or infected by the Coronavirus/COVID-19 may result from the actions, omissions, or negligence of myself and
others, including, but not limited to, employees, other customers, and their families. I voluntarily seek the products and/or services provided by _____ and acknowledge that I am increasing my risk to exposure to the Coronavirus/COVID-19.

I authenticate that:

      • – I am not experiencing any symptoms of illness, not limited to the following, such as

 

      • cough, shortness of breath or difficulty breathing, fever, chills, repeated shaking with

 

    • chills, muscle pain, headache, sore throat, or new loss of taste or smell.
    • – I have not traveled internationally within the last 14 days.
    • – I have not traveled to a highly impacted area within the United States of America in the last 14 days.
    • – I do not believe I have been exposed to someone with a suspected and/or confirmed case of the Coronavirus/COVID-19.
    • – I have not been diagnosed with Coronavirus/Covid-19 and not yet cleared as noncontagious by state or local public health authorities.
    • – I am following all CDC recommended guidelines as much as possible and limiting my exposure to the Coronavirus/COVID-19.

I hereby release and agree to hold _____ harmless from, and waive on behalf of myself, my heirs, and any personal representatives any and all causes of action, claims, demands, damages, costs, expenses and compensation for damage or loss to myself and/or property that may be caused by any act, or failure to act of the salon, or that may otherwise arise in any way in connection with any services received from _____. I understand that this release discharges _______ from any liability or claim that I, my heirs, or any personal representatives may have against the salon with respect to any bodily injury, illness, death, medical treatment, or property damage that may arise from, or in connection to, any services received from __________. This liability waiver and release extends to the salon together with all owners, partners, and employees.