Restaurant operators should not pin hopes on blanket liability waivers to shield them from employee lawsuits in coronavirus cases, a hospitality lawyer said this week.
One such case arose last week. Nacho Daddy, a Las Vegas-area restaurant, faced backlash when social-media users condemned the restaurant’s requirement that workers sign releases of liability in its employee documents. The company rescinded the requirement.
“Waivers are generally not necessary with employees,” said Omar Ali-Shamaa, an attorney specializing in hospitality with the Miami law firm of Wolfe Pincavage, in a phone interview Monday, “because as general rule employees can’t sue their employers for illness or injuries they sustain at work. That’s generally a workers’ compensation issue.
“Except in really rare circumstances, workers’ compensation is going to be the exclusive remedy that the employee would have for work-related illness or injury,” Ali-Shamaa noted.
Ali-Shamaa said waivers should be unnecessary if they follow guidelines issued by agencies such as the Occupational Safety and Health Administration and the Centers for Disease Control and Prevention.
Blanket waivers “realistically would never hold up,” he added.
“Because there is no federal legislation or OSHA-mandatory coronavirus-specific rules issued yet to articulate what an employee’s duty of care is with respect to COVID, the main thing an employer really should do is to adhere to the government guidance that are coming out,” Ali-Shamaa said. “That will be the best evidence for the operator that they have fulfilled the duty of care – or made good faith efforts – to comply with OSHA standards.”
OSHA has published a list of advisory recommendations for preparing workplaces to deal with coronavirus closures.
“If a restaurant is following those guidelines, it’s definitely going to be good evidence and good practice to avoid any exposure from an employee liability,” he said.
Federal and state governments, meanwhile, are beginning to address workers’ compensation laws to address the large number of liabilities spewing forth from the coronavirus pandemic.
Illinois, for example, is seeing a battle brewing over workers’ compensation coverage for COVID-19 illnesses.
Illinois was the first state to change its workers’ compensation law to presume workers contracted COVID-19 on the job if they work at businesses deemed essential by the state’s stay-at-home order, such health care, banks and groceries.
“That made it easier for them to get coverage for medical bills, lost wages, long-term impairment and, if they didn’t survive the disease, death benefits for their families,” the Chicago Tribune reported earlier this month.
Business groups concerned about the cost of claims sued, and a judge halted enforcement of the change, saying the Illinois Workers’ Compensation Commission exceeded its rule-making authority when it approved the emergency amendment. That state panel has withdrawn the change.
At the federal level, the Senate Judiciary Committee on May 12 held a hearing to examine the issue of whether the next round of coronavirus relief legislation should include limits on employees and consumers’ ability to sue health care workers, employers and other businesses for coronavirus-related injuries.
Among six witnesses was Helen Hill, CEO of the Charleston Area Convention & Visitors Bureau, who testified before the Judiciary Committee.
“Protections should be limited to American businesses that are reopening in accordance with health and safety guidance and acting in good faith,” Hill testified. “These measures should be temporary to protect responsible businesses from frivolous lawsuits during this pandemic and through a period of the economic recovery. And importantly, these measures must be put in place immediately. It is crucial that these protections are implemented as soon as possible so businesses can reopen, and we can get our economy moving again.
“If businesses do not have confidence in their ability to reopen,” Hill said, “America’s recovery efforts will be further delayed, causing even more severe economic harm.”
Ali-Shamaa said it was too early to tell whether restaurant operators would be shielded in such proposed legislation.
“To be frank,” he said, “I don’t know how much exposure they really do have.” He cited the highly contagious nature of the novel coronavirus.
“The one thing about this pandemic — for someone who is sued or anything,” Ali-Shamaa said, “the biggest element that’s difficult to prove is causation: Did the person really get the coronavirus at the restaurant?”
His advice for restaurant operators was to make sure they remain current on federal, state and local guidelines.
“They best thing to do is keep an eye on the OSHA, CDC and your local government guidance,” he said. “Restaurants should really look at their local guidance, because that’s where the boots are on the ground and can tell you how to protect yourself, your employees and your customers.”
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