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COVID-19

Legal Considerations for Businesses Reopening During COVID-19

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LSA Attorney Jeff Lieser Interviewed – Read Article

“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?

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LSA Attorney Jeff Lieser Interviewed – Read Article

“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:

  1. That the plaintiff contracted the virus at the business and
  2. That a business knew about the potential risk of harm to customers presented by Covid-19 and
  3. 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.”

Business COVID-19 Waivers for Employees and Customers

Categories
Business Law COVID-19

Virtual Mediation During COVID-19

With the coronavirus pandemic forcing more people to stay home, businesses across the country must find ways to perform their work without face-to-face interactions. Yet the pandemic has not reduced sources of disagreement.

Fast resolution of conflicts is often necessary for businesses to navigate this unusual time, and mediation can help with that. Yet the demands of social distancing make traditional, face-to-face mediation difficult. To answer this concern, Tampa mediator, Jeff Lieser, offers virtual business mediation services.

What Is Digital Business Mediation?

Digital mediation is an online form of traditional mediation. Specifically, it:

  • Man Attending a Virtual MeetingConnects disputing parties with a mediator through a secure, private online conference platform.
  • Allows the mediator to walk the parties through their dispute without face-to-face conflict.
  • Allows for electronic signatures of any resulting legal documents or agreements.
  • Takes place with no face-to-face, in-person contact, helping all parties maintain proper social distancing to stop the spread of COVID-19.

With virtual mediation, you get the same high-level mediation services you expect from Mr. Lieser, but in a virtual environment.

Does Online Mediation Work?

Jeff Lieser is a skilled business and real estate mediator. He knows how to spot subtle cues, like body language and facial expression, of the participants to help guide the discussion. You may wonder if virtual mediation is as effective. The answer is yes. Even in a digital environment, a skilled mediator can facilitate resolution.

For business owners struggling due to COVID-19, disagreements are going to happen. Through our virtual mediation services, Florida businesses can work through those differences. We can help you come to a successful conclusion, all while doing your part to reduce the spread of COVID-19.

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COVID-19

Florida and Essential Critical Infrastructure Workers 

As we move through and beyond the COVID-19 pandemic, all of us have been challenged to absorb a range of new terminology and guidelines to help us better maneuver through the crisis. This has been the case in both our personal and professional lives. One of the first waves of information all of us have had to adjust to is what the government considers Essential Critical Infrastructure Workers. This is what many have simply come to refer to as essential vs non-essential employees.

The establishment of these guidelines falls under the authority of the Cybersecurity and Infrastructure Security Agency (CISA) of the U.S. Department of Homeland Security. A memo from the agency dated March 28, 2020 helps define essential critical infrastructure employees. This can be a point of reference for employers in determining whether their particular employees can be deemed essential. This, of course, can have a far-reaching impact in many aspects of conducting business in and through the COVID-19 crisis.

The Range of Essential Critical Infrastructure Industries

The government’s memo provides a broad view of the many industries with workers that may be considered essential during this period. They include:

  • Police Boat Patrol as Florida Critical InfrastructureHealthcare/Public Healthcare
  • Critical Manufacturing
  • Hazardous Materials
  • Financial Services
  • Financial
  • Defense Industrial Base
  • Commercial Facilities
  • Food and Agriculture
  • Energy
  • Water and wastewater
  • Transportation and Logistics
  • Public Works and Infrastructure Support Services
  • Communications and Information Technology
  • Other Community or Government-based Operations and Essential Functions
  • Law Enforcement, Public Safety and other First Responders
  • Residential/Shelter Facilities and Services
  • Hygiene Products and Services
  • Workers supporting the operations of the judicial system, including judges, lawyers, and others providing legal assistance.

As you can see, the list is a quite extensive one. The memo also includes this interesting caveat concerning its list:

This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard. Additionally, this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.”

This leaves significant leeway for interpretation. Therefore, if you have any questions about whether employees may be considered essential, you should contact our Tampa employment lawyers at Lieser Skaff Alexander. We are here to help your business navigate through coronavirus-related legal issues, including those that are employee-related. Contact us today with your questions. We are open and conducting business-as-usual, with precautions.

 

Categories
COVID-19

EEOC Clarifications and Guidance Regarding COVID-19 Medical Information and ADA Accommodation Requests

There have been numerous questions posed by employers in regard to confidentiality of medical information pertaining to the COVID-19 pandemic. The U.S. Equal Employment Opportunity Commission (EEOC) has attempted to address some of the most common questions which employers feel need addressing. Here are some guidelines:

Store Clerk with Mask Checking Out CustomerWhat medical information may be retained in an employee’s file?

Employers may retain information regarding COVID-19 in an employee’s file, provided they are only kept in medical files and not in general personnel files. Access must only be granted to those who have access to information which would otherwise be considered confidential.

Am I allowed to require employees have their temperature taken before entering the workplace?

Yes, an employer may require this, provided it is requested of all employees. In cases where an employer maintains such information in a daily log, that log must be confidential.

Can I release the name of an employee who has been diagnosed with COVID-19?

Only in cases where the name is provided to a public health agency. Employers may not share such information with other employees unless the employee gives explicit permission for them to do so.

Does the ADA allow an employer to send an employee home or have them stay home if their symptoms are indicative of COVID-19?

Yes. Employers may request such an employee stay at home or send them home for a period consistent with guidelines issued by the CDC.

What guidance can you provide to staffing agencies or contractors regarding a team member who is diagnosed with COVID-19?

In these instances, you may provide any employer who was in contact with the team member their name. This allows the company where they worked to ensure they take extra precautions and be aware of potential spread within the workplace.

How do I handle employees who may be at greater risk of COVID-19 due to preexisting health concerns?

Employers must still adhere to ADA “reasonable” accommodations guidelines. In the case of COVID-19 fears this may include:

  • Having an employee work from home when possible
  • Workplace accommodations such as barriers between workstations
  • Modified work schedules or assignments
  • Temporary assignment to new duties

What guidance does the ADA offer about employees with mental illness or disorders?

Because the COVID-19 pandemic has the potential to exacerbate mental illness or disorders, employers should take necessary steps to offer any employee with a pre-diagnosis of such a condition any accommodations which are reasonable.

Employers who have additional questions should review information on the Job Accommodation Network (JAN), the U.S. Equal Employment Opportunity Commission (EEOC), and the guidance for employers offered by the Centers for Disease Control (CDC).

Employers who still have questions about allowing employees to return to Florida workplaces should contact us during Covid-19.

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COVID-19

NEW CDC GUIDANCE ON RETURN-TO-WORK STANDARDS FOLLOWING CORONAVIRUS EXPOSURE

Employers are rightfully concerned about having workers return to their place of business after they have been diagnosed with or exposed to COVID19. Fortunately, the CDC has provided guidance for employers who have workers classified as “critical infrastructure workers”. Employers who fall into this category include, but are not limited to employers in sectors such as critical manufacturing, law enforcement, energy, transportation, haz-mat responders, janitorial staff,911 call center staff members and others. Employers who are uncertain if these guidelines apply to them, can review our blog post on Essential Critical Infrastructure Workers.

Understanding Exposure Versus Potential Exposure

Potential exposure is defined as “a household contact or having close contact within six feet of an individual with confirmed or suspected COVID-19.”

Previous Guidance Versus New Guidance

Under previously issued guidance, the CDC recommended any employee who was potentially exposed to COVID19 be sent home and remain home for up to 14 days. However, under the new guidance these employees may remain at work provided some additional guidelines are followed, including:

  • For Employers — employers must ensure all workplace areas are routinely disinfected. This process helps curb the potential danger of spreading to other employees. In addition, prior to the employee entering the workplace, the employer should ensure the employee has no symptoms and does not have a fever.
  • For Employees — the employee who remains asymptomatic may return to the workplace provided they wear a face covering for up to 14 days following their return to the workplace. Employees should also continue monitoring themselves for symptoms in conjunction with the employer’s occupational health program. The employee should also maintain a recommended distance of six feet or more from others in the workplace as their assignments allow.

Employers and employees should thoroughly review the CDC guidelines to ensure they are doing everything possible to avoid spreading the Coronavirus.

 

Categories
COVID-19

COVID-19 and Contractual Commitments

The COVID-19 pandemic has devastated businesses across the country and many owners have been left to wonder if they are legally bound by contracts they signed prior to the outbreak. Unfortunately, there is not simple yes or no answer, but there are circumstances where the contract can be breached without penalties. Every contract is unique and you will need to consult with a business law firm to determine your rights and obligations.

Force Majeure Clause

Force majeure means “superior force” in French and is often referred to as the “Act of God” exception to meeting contractual obligations. In a contract, a force majeure clause recognizes that a significant unforeseeable event could make it impossible for one party to meet its obligations and they should not be penalized under these circumstances.

An enforceable force majeure clause often includes defined, limited circumstances as to when it will be applicable. Most of these clauses include natural disasters, such as a flood or hurricane, but some go further to encompass war or civil unrest, shortages of power or epidemics, pandemics and mandated quarantines. Even if a force majeure clause does not specifically include pandemics, such as COVID-19, that does not mean you cannot seek to use it to excuse your obligations under a contract. For this reason, you need to speak with a business attorney to review the contract and your circumstances. A business attorney  will analyze your situation, recommend a legal course of action, and guide you through the process.

Early Termination/Termination of Convenience

If an agreement does not have an enforceable force majeure clause, other terms may provide protection against inability to perform or unexpected cancellations. Some contracts contain a clause that stipulates an option for early termination or termination for convenience. When this clause exists, it often includes specific notice provisions and other express termination language so it is important to closely follow these requirements.

Impracticality and Frustration of Purpose

In addition to the terms of a contract, Florida courts recognize several legal principles that excuse contract performance, including-the impossibility of performance and frustration of purpose or impracticality. Impossibility of performance addresses situations where the purpose for which the contract was created has become impossible to perform for one of the parties. This legal principle only applies to unforeseeable risks that could not have been the subject of an express provision of the contract.

Frustration of purpose occurs when the value of performance of the contract has been frustrated or destroyed – example, a restaurant that regularly purchases produce from a farmer pursuant to a contract, but cannot meet its minimum monthly purchasing obligation because it was forced to close or limit service under Florida’s COVID-19 response regulations.

Seek Legal Counsel

Business owners should not assume that a contract will automatically be voided due to COVID-19. It is important to consult with a business attorney to review your contact and understand your options and obligations.

Categories
Construction

RECENT AMENDMENT TO CHAPTER 558: PRE-SUIT NOTICE FOR CONSTRUCTION DEFECTS NO LONGER TOLLS THE STATUTE OF REPOSE

Florida Statutes Chapter 558, also known as the Florida Construction Defect Statute, imposes a requirement that property owners must provide a “notice of claim” to developers, contractors, subcontractors, suppliers, and/or design professionals, which identifies construction defects before any lawsuit concerning those construction defects may be initiated. The purpose is to provide parties an alternative method to resolve construction disputes, reducing the need for litigation.

If a property owner fails to send a notice of claim before filing suit, certain legal rights may be delayed or lost. Similarly, if a property owner fails to file a lawsuit within a given time period, any claims regarding alleged construction defects will be time-barred.

Stucco Construction DefectGenerally, in Florida, a lawsuit for construction defects must be brought by a property owner within four years. The timing for the statute of limitations begins upon the later date of the owner’s possession of the property, the issuance of a certificate of occupancy, the abandonment of construction if not completed, or the completion or termination of the contract for work.

Under no circumstances may “an action” for construction defects be brought after ten years, the statute of repose under Florida Statutes Chapter 95.11(3)(c). “An action” is broadly defined by Chapter 95 as a “civil action or proceeding.”

In a recent case before the Fourth District Court of Appeal – Gindel v. Centex Homes, 267  So. 3d 403 (Fla. 4th DCA 2018) – the court looked at whether the pre-suit notice under Chapter 558 qualified as “an action,” as defined by Chapter 95. The short answer was: Yes, compliance with the notice requirement of Chapter 558 qualified as “an action” for purposes of the statute of repose. This ruling effectively extended the date by which a lawsuit could be filed. So long as a property owner provided pre-suit notice, which qualified as “an action” under Chapter 95, they could later pursue a lawsuit for construction defects, even if it was beyond the ten-year mark.

Following the decision in Gindel, the Florida Legislature amended Chapter 558, Florida Statutes, to add Section 558.004(1)(d), which provides: “A notice of claim served pursuant to this chapter shall not toll any statute of repose under Chapter 95.” The amendment will be effective starting July 1, 2019.

With the newly added language, it appears the Florida Legislature sought to correct the ruling reached in Gindel, intending for its statutorily mandated cut-off of ten years within Chapter 95 to really mean just that, ten years. While the newly amended Chapter 558 does not expressly state that a “notice of claim” is not “an action” for purposes of the statute of repose, contrary to the decision in Gindel, Section 558.004(l)(d) has the same effect. To interpret otherwise would render Section 55 8.004(1 )(d) meaningless.

To navigate the change and ensure a case for construction defects is timely and proper, it is recommended that you consult with an experienced construction attorney. At Lieser Skaff Alexander, our attorneys have extensive experience in dealing with Chapter 558 and can assist you or your business with your construction defect matter.

Categories
COVID-19 Property Management

COVID-19’s Impact on Evictions and Foreclosures

On March 18, 2020, President Donald Trump ordered a moratorium on the foreclosures of mortgages that are insured by the Federal Housing Administration (FHA).  That moratorium arose from the President’s proclamation that the COVID-19 outbreak constitutes a national emergency.  The moratorium is expected to stay in effect for at least the next sixty days.

Commercial Outdoor RetailAlthough the effect of the President’s moratorium has thus far had a somewhat limited impact locally, other events have caused either extreme delays or complete stoppages of foreclosures and evictions.  For example, Hillsborough County Chief Judge Ronald Ficarrotta recently issued an Administrative Order that expressly authorized the Sheriff to completely cease the execution of Writs of Possession arising from eviction suits until at least April 20, 2020.  It is a fair presumption that the holding of Writs of Possession by the Sheriff’s Department will continue past April 20, 2020, if the effects of the COVID-19 pandemic have not significantly improved by that time.

Judge Ficarrotta’s Administrative Order has effectively stopped the completion of evictions in Hillsborough County.  It is unknown if the Hillsborough County Sheriff will apply Judge Ficarrotta’s Administrative Order to commercial evictions, as they are not specifically mentioned.

Hillsborough County is not the only Florida County with stoppages in the court system.  In almost every Florida county, the Clerk of Court’s Office is closed to the public.  Further, at least thirty-seven separate Sheriff’s Departments in Florida have ceased executing Writs of Possession.  Even in counties where the Sheriff’s Department is still in action, landlords are faced with judges who are only handling cases that are “mission critical.”

If you decide to file for eviction, it is our firm’s recommendation that you move forward quickly – especially on commercial evictions, as the intent of the Order appeared to be related to dwellings.  Although you will very likely hit a stoppage, we think it is important to advance your case as far as possible and get in line as early as possible, so that your case is more quickly addressed when the court system resumes full operations.