We are delighted to announce that once again, our namesakes have been recognized as Super Lawyers and/or Legal Elite by a panel of peers and experts.
The Super Lawyer designation is awarded to a select few attorneys who excel in their chosen fields. Fewer than 3% of attorneys are recognized each year. This year, Super Lawyers magazine has selected Jeff Lieser, Ghada Skaff, and Joe Alexander as recipients of this prestigious designation.
Florida Trend’s Legal Elite
In addition to being recognized as SuperLawyers, Jeff Lieser and Ghada Skaff have been named Legal Elite members. This distinction is provided to just1.3% of Florida lawyers. Legal Elite by Florida Trend Magazine recognizes the top Florida attorneys. Florida Trend’s Legal Elite attorneys are chosen by peers for their knowledge, expertise and experience in various areas of Florida law.
Both the Super Lawyers and the Legal Elite awards are given after careful consideration and peer voting. Lawyers who are awarded these designations have been chosen as leaders in their fields by attorneys throughout the state of Florida.
The COVID-19 pandemic has taken all of us into uncharted waters. After an unprecedented near nationwide shutdown, many states are going through the process of reopening. For business owners, the ability to re-open is often crucial to the very survival of the business. At the same time, a business may have valid concerns about the possibility that an employee or customer could contract the virus while on the premises, resulting in the filing of a lawsuit against the business. In an effort to avoid costly litigation, some businesses are requiring workers and/or customers to sign a liability waiver — but do waivers actually work?
Are Waivers the New Normal?
Just as social distancing and wearing a mask in public have become the new normal, signing a liability waiver before returning to work or entering a business may also be commonplace going forward. The New York Stock Exchange is requiring traders to sign a waiver before entering the trading floor, while Walt Disney Co.’s website cites “severe illness and death” risks for customers at its Orlando, Florida, amusement parks. The Trump campaign even had attendees at a rally sign a waiver agreeing not to sue the campaign if they contract the virus.
Why Are Businesses Requiring Waivers?
Business owners are contemplating the use of waivers to avoid the very real possibility of costly litigation that could ensue if a worker or customer claims they contracted COVID-19 at the business.
Typically, workers are covered under workers’ compensation if they are injured or become ill on the job, but questions remain unanswered regarding Covid-19 coverage. In order to qualify for workers’ compensation benefits, a worker need not prove that the employer did anything wrong, only that the injury or illness is job-related. Illnesses like the cold or flu, however, are not usually covered under Florida’s workers’ compensation laws, because they are seen as a hazard of daily living. Though the Florida Department of Financial Services has issued a directive to honor Covid-19 claims made by frontline state employees (such as police officers, first responders, corrections officers, state healthcare employees, child safety investigators and active national guard members), this directive has not been categorically extended to all employees, which could leave employers vulnerable to negligence lawsuits if Covid-19 claims are treated like cold or flu claims.
Customers have long been able to pursue a personal injury lawsuit based on the concept of premises liability if they were injured or became ill as a result of the business owner’s negligence. For a business that already suffered significant economic losses during stay at home orders, the prospect of a hefty damages award may be enough to implement the use of a liability waiver.
Does a Liability Waiver Really Work?
It depends. The basic idea behind a liability waiver in the context of the coronavirus pandemic is to protect a business from liability for damages if someone contracts the virus while working or visiting the business. In legal terms, this is accomplished by asking the person executing the waiver to “assume the risk” of contracting the virus. Can a waiver actually protect a business though? The answer is less than certain, – and depends on a variety of factors that are likely to change in the coming months.
Liability waivers have historically been limited by the courts in three important ways. First, only known risks can be assumed by the person signing the waiver –, meaning a waiver must clearly state the risks – (in this case, contracting COVID-19). Second, it must be a voluntary assumption of the risk. Finally, a waiver must be consistent with public policy, which may present issues for both employee and visitor waivers due to the bargaining position between employees and employers, as well as certain businesses and visitors that are consumers.
Additionally, Florida courts have made clear that they will not enforce waivers that attempt to protect a business from actions arising from the business’s gross negligence or intentional acts. Likewise, a waiver that requires an employee to waive the right to workers’ compensation or unemployment benefits is also unenforceable.
Should I Require a Waiver for My Business?
If you are a business owner who is concerned about your liability exposure during the coronavirus pandemic, it is in your best interest to consult with an experienced business law attorney before you consider utilizing a liability waiver. Additionally, business owners should carefully analyze the potential non-legal impact of requiring visitors or employees to sign waivers (i.e., potential effect on image). While a carefully drafted waiver may provide your business with some protection, it should be uniquely tailored both to your business and to the ever-changing laws relating to COVID-19.
On April 3, 2020, the Paycheck Protection Program was established with the intent to support small U.S. businesses during the COVID-19 pandemic. Program funding was depleted within a few days, in part, because some of the loans were distributed to companies that were not the intended recipients. The Paycheck Protection Program received an additional $484 billion on April 24, 2020, when President Trump signed a second COVID-19 rescue bill.
Problem with the Original Paycheck Protection Program Structure
As originally structured, there was an inherent flaw in the Paycheck Protection Program (PPP). Under PPP requirements for loan forgiveness, businesses had to spend 60% of the loans on payroll with the other 40% on rent, mortgage, interest, or utilities within 8 weeks of receiving the funds. For struggling businesses that had been forced to close due to the pandemic, there was no payroll, which meant that the loan could not be forgiven.
Issue Rectified with Second Payroll Protection Program Structure
The second COVID-19 rescue bill extended the timeframe that businesses were required to use the funds from 8 weeks to 24 weeks. As states allow businesses to reopen, more small businesses can seek forgiveness of the loans under the federal guidelines. However, challenges still remain.
During an interview with WFLA News, Jeff Lieser, an attorney at Lieser Skaff Alexander, said that while the Small Business Administration (SBA) has a guide for loan forgiveness, this process is dense and difficult to understand. Mr. Lieser urges businesses to stay in contact with their lender and to ask questions about any part of the process that is unclear. In addition, Mr. Lieser encourages business owners to continually review the Frequently Asked Questions (FAQ) of the SBA’s website to stay current of changes and updates to the loan program.
Loan Forgiveness Process
The main purpose of the Paycheck Protection Program was to ensure that small businesses could continue operations during the shutdown but qualifying for loan forgiveness is a complex process. Business owners must be prepared to provide their lenders with complete and detailed documents of how the loan funds were spent and prove that the disbursement complied with the payroll percentage requirement. For businesses that utilize payroll programs or third party payroll process companies, this part of the process may be simplified but rent, interest, and other expenses must also be fully documented.
Mr. Lieser encourages business owners who are having difficulty documenting their qualifications for loan forgiveness to contact an attorney specializing in business law to support them in this process.
We are proud to announce that Jeff Lieser andGhada Skaff were recognized as 2020 Florida Legal Elite and Joseph Alexander was named Super Lawyer for 2020. In addition, Associate AlissaKranz was named both a Super Lawyers Rising Star and Florida Legal Elite Up & Comer for 2020.
Florida Legal Elite has recognized Jeff each year since 2017, making this his fourth year to receive this honor. Jeff was also named a Rising Star by Super Lawyers Magazine from 2013 to 2017. A co-founder of Lieser Skaff Alexander, Jeff’s practice focuses on complex business and real estate litigation. He also serves as class action counsel, Circuit Civil Mediator, and Reserve Judge Advocate in the U.S. Army J.A.G. Corps.
This is the third year in a row that Ghada Skaff has been recognized by Florida Legal Elite. She has also been recognized by Super Lawyers as a Rising Star from 2015 through 2017. She is a member of Leadership Tampa class of 2020, a program designed to enhance the skills and opportunities of local business leaders. Serving as counsel for many of Tampa Bay’s finest businesses and entrepreneurs, Ghada’s practice is focused on transactional and business law.
Joe has been named a Super Lawyer every year since 2016. He is known for excellent representation as well as his extensive service to the community.
For Alissa, this is her third consecutive year to be named a Super Lawyer Rising Star, which is an honor reserved for the top 2.5 percent of attorneys under the age of 40. This is the second year she was named Florida Legal Elite Up and Comer. Alissa specializes in complex commercial and real estate litigation and represents clients in both federal and state courts. Her client base ranges from individuals to Fortune 500 companies.
In what the United Nations has described as a “shadow pandemic,” the reported cases of domestic abuse have risen by at least 20% since COVID-19 started and is likely much higher because of unreported cases. As employers welcome staff back to the workplace, they should be aware of potential domestic violence issues and the Florida Domestic Violence Leave Law. This Statute applies to businesses that employ 50 or more employees and to employees who have been employed by the employer for three or more months.
The law protects a worker’s job if the worker needs time off because of domestic violence. Specifically, the law allows an employee up to three working days of leave from work in any 12- month period if the employee or a family or household member of an employee is the victim of domestic violence or sexual violence. An employer retains the ability to decide if the time off is paid or unpaid leave. The requested leave may be used to:
Seek a court order against domestic or sexual violence.
Obtain medical care or mental health counseling needed because of domestic violence.
Obtain services from a victim services organization.
Make the employee’s home secure from the perpetrator or to seek new housing to escape the perpetrator.
Meet with an attorney or attend court related to domestic or sexual violence.
While an employer must comply with the Domestic Violence Leave Law, the law also affords several significant rights and protections to an employer. First, an employee is required to provide an employer with “appropriate advance notice” of the intention to take leave unless doing so would result in “imminent danger to the health and safety of the employee.” Second, an employer has the right to request “sufficient documentation of the act of domestic violence or sexual violence” from the employee. Finally, an employee has the right to require an employee to use any available vacation, personal, or sick leave before granting leave under the Domestic Violence Leave Law.
As we all cope with the COVID-19 pandemic, feelings of anxiety, sadness, and fear are commonplace.
Pandemic-related factors that may add to a workers’ stress, are sundry, but may include fears regarding health or job security.
A proactive response to employee mental health needs is not only prudent for continued business operations, but may also be necessary to remain compliant with Occupational Health and Safety (OSHA) and the Americans with Disabilities Act (ADA).
The Occupational Safety and Health Administration (OSHA) guidelines, for example, indicate that mental illness can be considered work-related if an employee “voluntarily provides the employer with an opinion from a physician or other licensed health-care professional with appropriate training and experience stating” as such. If an employee’s mental health issues are deemed work-related it can have serious consequences for the employer.
In a recent article published in the Daily Business Review and Law.com, attorney Jeffrey Lieser discussed employer considerations regarding the impact of COVID 19 on employee mental health. In the article, Mr. Lieser reviews OSHA guidelines and ADA requirements that employers may have to address and presents suggestions to employers on employee mental health issues in the COVID-19 workplace.
The Hillsborough County Courthouse has implemented changes to how it handles hearings as it opens from the COVID-19 shutdown. Your case may be rescheduled or heard remotely via Zoom or a similar video chat system. To find out whether your hearing will be continued or heard via video chat, visit the Thirteenth Judicial Court’s website. Once on the website, click on View Latest News for COVID-19 Information and Updates, then Judicial Directory. Under judicial directory, click on your Judge’s name or division. Once the Judge’s page comes up, click on the Procedures/Preferences link for how your hearing will be handled, and for the instructions for appearing and participating electronically.
If your hearing is still scheduled to be held at the courthouse, you must wear a mask or cloth face covering while you are in the courthouse.
Do not bring anyone with you to your hearing, as they will not be admitted into the courthouse.If your attorney directs you to bring someone, you may bring that person or people with you. The number of people allowed in court is limited due to social distancing.
Viewing and Changing Case Information
You can see your case information by visiting the clerk’s website. If you need to change your address with the Clerk of Court, you must complete a Designation of Current Mailing and Email Address form, which is located under the Forms section on the clerk’s website. Email the form or mail it to the Clerk of the Circuit Court, PO Box 3360, Tampa, FL 33601.
Before Coming to the Courthouse
So that all hearings run as smoothly as possible during these trying times, please be prepared to answer the following questions. If you answer “Yes” to any of them, contact your attorney for additional guidance prior to coming to the courthouse:
Have you or anyone in your household come in contact with someone who tested positive for COVID-19 in the last 30 days?
Have you experienced any of the symptoms and signs listed by the Centers for Disease Control (CDC), including fever, cough, chills, shortness of breath, muscle pain, repeated shaking with chills, headache, loss of taste or smell (that is new, not a prior symptom because of other illness), and/or a sore throat within the last 14 days?
Have you traveled internationally or on a cruise within the last 30 days?
Let the court or your attorney know if you do not have a phone or internet access.
Visit a video call website such as Zoom for guides and additional information.
Download the video application the day before your hearing and test the microphone, speakers, and camera. Most video call websites have a test link to help you test your equipment.
Dress appropriately – as you would if you were to appear in person.
Remove all distractions from the room, including pets and children (you may need to get a babysitter).
During the hearing, keep your device on mute while you are not speaking to limit feedback and background noise.
Email the court prior to the hearing if you have evidence to present to the court. Contact your Judge’s division if you have documents or witnesses you want available for your hearing.
Ask others in your home to refrain from using the Wi-Fi network to ensure that you have the best possible connection.
Do not ignore the virtual hearing. You must notify your attorney or the court if you cannot attend the hearing.
Do not talk over others. When more than one person is talking, it is very difficult for the Judge and others to hear. Instead, wait until the Judge asks you to speak.
Do notdo other things while you are on the call. If you are distracted by multitasking, you may miss important information or miss a request from the Judge.
Remember to contact your attorney, the clerk, or the Judge’s judicial assistant as directed above if you have any concerns prior to your hearing.
“People are assuming risk by going out….but it doesn’t mean businesses can ignore the process of providing a safe space”
As the country begins the process of opening back up after weeks of mandatory business closures and stay at home orders, legal issues relating to Covid-19 are beginning to surface. Employees, customers, and business owners face a legal landscape unlike anything that has come before it. Employees who are called back to work may worry about being exposed to the virus in the workplace while customers share the same concerns about frequenting recently re-opened businesses. At the same time, business owners may fear lawsuits brought by those employees and/or customers. All of which leads to the question – can a business be sued over Covid-19?
“Owners, be hawkish about following all guidelines to protect your business from litigation”
Most employees are covered under an employer’s workers’ compensation coverage which is intended to provide compensation and medical benefits to workers who are injured or become ill while at work. While an employee is not required to prove fault on the part of an employer to be eligible for workers’ compensation benefits, the worker must prove that the injury/illness occurred while on the job. For a worker hoping to get a workers’ compensation claim approved based on testing positive for Covid-19, the challenge will be providing that proof.
Nevertheless, in a recent interview, Tampa business attorney Jeffrey Lieser suggested that a business “read every piece of guidance out there that is applicable and implement it and be hawkish about making sure it is followed. Otherwise, you’re opening yourself up to liability.”
The Occupational Safety and Health Administration (OSHA) has issued similar advice. OSHA requires employers to establish a workplace that’s “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees. Given the current Covid-19 pandemic concerns, OSHA has advised business to follow the Centers for Disease Control and Prevention guidelines including instructing employees to keep six feet away from co-workers or customers, taking temperatures, disinfecting surfaces, and providing face masks, hand sanitizers, and barriers when appropriate.
Can a Customer Sue a Business?
Customers who are injured or become ill after visiting a business can typically pursue a claim for damages through the filing of a personal injury lawsuit. Unlike a workers’ compensation claim, however, a personal injury lawsuit requires the plaintiff to prove negligence on the part of the defendant. In this case, that would require the plaintiff to prove several important things, including:
That the plaintiff contracted the virus at the business and
That a business knew about the potential risk of harm to customers presented by Covid-19 and
That the business failed to take reasonable steps to prevent that harm from occurring.
Just like the worker in a workers’ compensation claim, a plaintiff in a personal injury lawsuit will face an uphill battle proving that the virus was contracted at the business. A customer assumes a certain amount of risk simply by venturing out under the circumstances; however, a business should also take steps to mitigate any potential risk. As attorney Lieser said recently, “The public is assuming liability by just living and breathing and going out in the world, but that doesn’t mean that the places they’re invited to whether it’s a pool, or a place of business can recklessly ignore the guidance from the officials as to what you need to do to operate a safe space.”