For many business owners, coronavirus is one of the biggest challenges they've had to face. Business-as-usual has gone out the window as masks and social distancing have become the norm. COVID-19 is part of our reality now, at least until a vaccine comes along. Businesses must learn to survive and thrive in the new coronavirus economy.
As a good business owner, you want to protect your customers, your employees, and yourself. Despite your best efforts, what happens if a customer or employee catches COVID-19 and traces their transmission back to your business? Can they sue you?
Like other states, Pennsylvania and New Jersey have both enacted rules on how businesses can reopen and restart services. These policies are in addition to the national guidelines set by the CDC. As your business continues to operate, you must follow all local, state, and federal laws. That's a lot to keep track of, especially when some requirements change daily or weekly depending on the COVID-19 case count in the region.
In response to these changes, many business owners are turning to COVID-19 liability waivers to protect themselves from being sued in case of an outbreak.
Liability waivers are not new. You may even use them already to limit your legal responsibility for accidents or other harms that may occur at your company. Now business owners are using COVID-19 waivers as a way to proactively limit their potential liability by requiring all guests, potential customers, and even employees to sign.
Whether you need a COVID-19 waiver depends on the nature of your business. Your best bet is to talk to an experienced local Pennsylvania and New Jersey business lawyer about your options. Call the Holmes Business Law Firm at 215-482-0285 for a consultation today. We can help you take the right steps to move forward.
What Can a COVID-19 Waiver Do for Your Business?
Because COVID-19 safety guidelines continue to change daily, a liability waiver can help protect you and your company against lawsuits from factors you cannot control.
Simply put, a liability waiver or “release form” is a legal document signed by a customer or employee. The signer agrees to accept certain risks and waive the right to sue your company. You may have noticed more liability waivers lately in places like gyms, salons, restaurants, and doctors’ offices. You may have even signed a COVID-19 waiver yourself in the last few months.
Not all liability waivers are created equal. You need a strong waiver for it to be valid. If your waiver isn’t written correctly, it won’t be enforceable in court. You can't simply create a blanket liability waiver against all harm and expect it to protect your business. In fact, waivers that are too broad are most likely to backfire, leaving you vulnerable to lawsuits.
To be valid, your COVID-19 waiver must be well-crafted and narrowly tailored to its purpose. This is why template liability waivers you find online might not work. If it’s not written specifically for your business, a court may decide that the language is too broad.
In Pennsylvania, a liability waiver is considered valid if it is:
● Clearly worded with no ambiguities,
● Prominent (not hidden in the fine print of a long contract), and
● Signed by the person waiving their right to sue.
Your waiver must make clear exactly what your customers or employees are signing. The average reader should be able to immediately understand they’re signing a document that will limit their legal options for the future.
To be enforceable in Pennsylvania, your coronavirus liability waiver must:
● Have clear language that focuses on the risks of COVID-19,
● Avoid “any and all liability” language that is too broad, and
● Avoid generic or cookie-cutter text, such as from a template.
The more vague or generic your waiver, the less likely it is to be enforced. For example, a waiver against the general risk of contracting a disease or becoming ill would not be enough.
The best COVID-19 waivers with the strongest chance of enforcement should include:
● A description of the symptoms of the virus,
● An explanation of how the virus may be transmitted,
● A statement explaining that asymptomatic carriers could transmit the virus, and
● Confirmation that the person signing voluntarily and knowingly takes on the risk of contracting COVID-19 by patronizing your business.
You will likely need a separate waiver for customers and employees since each interacts differently with your company. Your lawyer can help you draft both documents in a way that protects your business against liability from all sides.
Limits of a COVID-19 Liability Waiver
Keep in mind that a liability waiver cannot be used to release businesses from reckless, willful, wanton, or intentionally harmful conduct. Out of concern for public policy, you can’t simply waive all liability and then walk away free of all responsibility.
So even if your business has a coronavirus liability waiver, you must still enforce proper protocols to protect customers and employees from transmission of the virus.
That means following local, state, and federal guidelines whenever possible by:
● Enforcing mask and social distancing policies
● Implementing new hygiene protocols
● Performing additional environmental cleaning
● Encouraging sick employees to stay home
● Providing personal protective equipment (PPE) when necessary
If you fail to take these reasonable or required precautions, your business could still be on the hook for damages even with a COVID-19 waiver in place.
A dedicated Pennsylvania business lawyer can help you avoid liability by drafting a robust waiver and staying on top of any required workplace safety precautions.
Hiring a Lawyer to Create Your COVID-19 Liability Waiver
The coronavirus pandemic has thrown so much of our lives into uncertainty. Don’t add to your worries by trying to create a liability waiver yourself out of samples you find online. Worst case scenario, you get a waiver that you think will protect you except it gets struck down by a court. This leaves you vulnerable to costly lawsuits.
With the constant news and near-daily changes to coronavirus guidelines both nationally and on the state and local levels, your best option is to cover all your bases with an experienced Pennsylvania and New Jersey business lawyer.
There is no substitute for the personalized solutions we provide every day to our clients at Holmes Business Law. Our attorneys are dedicated to guiding business owners into making the best possible decisions for their business. We are committed to protecting your business for the long haul. You can rest easy with your coronavirus compliance in our hands.
Call our office now at 215-482-0285 to speak to an attorney about creating an enforceable COVID-19 waiver for your business.
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Many small business owners know that the PPP has been nothing short of a total cluster. While it was great that the legislature initially acted so swiftly to attempt to get aid to small business owners, the PPP rules and regulations were murky and subject to changing provisions on a near-daily basis last month.
Just yesterday, the Senate passed a bill expanding the period for PPP forgiveness and modifying some provisions. Of note:
1) PPP period will be extended to 24 weeks, instead of 8; many business owners were concerned that the 8 week requirement meant they'd be paying staff while their business was not even operating. This will give business owners an opportunity to pay staff for actually working;
2) the PPP portion mandated to be used for payroll in order to get forgiveness will drop from 75% to 60%. HOWEVER, it is yet to be determined whether 60% MUST be used to get forgiveness AT ALL. When it was a 75%, the amount of forgiveness was merely reduced.
3) loan repayment term extended to 5 years, up from the 2 years initially set;
4) new exceptions that would still allow a business owner to get full forgiveness: 1. inability to find qualified workers; and 2. inability to restore business operations to Feb. 15, 2020, levels due to COVID-19 related operating restrictions.
We are glad the legislature has adopted these changes and hope this is signed into law shortly.
Do you have a wedding industry business?
Are you concerned about contracts for upcoming weddings?
Do you need to give back deposits?
What's in your force majeure clause?
How can you make a plan for the future with so much uncertainty?
Join our webinar on Thursday, April 23rd at 9:30am. Register with the link below.
The Business Impact of Covid-19, Free Ebook on Negotiating with Your Landlord, Sources of Funding, Business Interruption Coverage, and More
Legal alert! On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act. While this Act is meant to protect workers out of work due to coronoavirus quarantines, sickness and to help those with children at home, the Act is going to be severe consequences to small business owners.
There are two main parts that could affect small business owners:
1) Sick Leave Provisions
PAID SICK TIME REQUIREMENT
(a) In General.—An employer shall provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) due to a need for leave because:
(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Except that an employer of an employee who is a health care provider or an emergency responder may elect to exclude such employee from the application of this subsection.
(b) Duration Of Paid Sick Time.--
(1) IN GENERAL.—An employee shall be entitled to paid sick time for an amount of hours determined under paragraph (2).
(2) AMOUNT OF HOURS.—The amount of hours of paid sick time to which an employee is entitled shall be as follows:
(A) For full-time employees, 80 hours.
(B) For part-time employees, a number of hours equal to the number of hours that such employee works, on average, over a 2-week period.
(3) CARRYOVER.—Paid sick time under this section shall not carry over from 1 year to the next.
(c) Employer’s Termination Of Paid Sick Time.—Paid sick time provided to an employee under this Act shall cease beginning with the employee’s next scheduled workshift immediately following the termination of the need for paid sick time under subsection (a).
(d) Prohibition.—An employer may not require, as a condition of providing paid sick time under this Act, that the employee involved search for or find a replacement employee to cover the hours during which the employee is using paid sick time.
Penalties for failure to comply include:
It shall be unlawful for any employer to discharge, discipline, or in any other manner discriminate against any employee who--
(1) takes leave in accordance with this Act; and
(2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding.
(a) Unpaid Sick Leave.—An employer who violates section 5102 shall--
(1) be considered to have failed to pay minimum wages in violation of section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206); and
(2) be subject to the penalties described in sections 16 and 17 of such Act (29 U.S.C. 216; 217) with respect to such violation.
(b) Unlawful Termination.—An employer who willfully violates section 5104 shall--
(1) be considered to be in violation of section 15(a)(3) of the Fair Labor Standards Act of 1938 (29 U.S.C. 215(a)(3)); and
(2) be subject to the penalties described in sections 16 and 17 of such Act (29 U.S.C. 216; 217) with respect to such violation.
IN ADDITION TO THE NEW SICK TIME PROVISIONS, FMLA HAS BEEN TEMPORARILY EXPANDED:
“SEC. 110. PUBLIC HEALTH EMERGENCY LEAVE.
“(a) Definitions.—The following shall apply with respect to leave under section 102(a)(1)(F):
“(1) APPLICATION OF CERTAIN TERMS.—The definitions in section 101 shall apply, except as follows:
“(A) ELIGIBLE EMPLOYEE.—In lieu of the definition in sections 101(2)(A) and 101(2)(B)(ii), the term ‘eligible employee’ means an employee who has been employed for at least 30 calendar days by the employer with respect to whom leave is requested under section 102(a)(1)(F).
“(B) EMPLOYER THRESHOLD.—Section 101(4)(A)(i) shall be applied by substituting ‘fewer than 500 employees’ for ‘50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year’.
“(2) ADDITIONAL DEFINITIONS.—In addition to the definitions described in paragraph (1), the following definitions shall apply with respect to leave under section 102(a)(1)(F):
“(A) QUALIFYING NEED RELATED TO A PUBLIC HEALTH EMERGENCY.—The term ‘qualifying need related to a public health emergency’, with respect to leave, means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.
“(B) PUBLIC HEALTH EMERGENCY.—The term ‘public health emergency’ means an emergency with respect to COVID–19 declared by a Federal, State, or local authority.
“(C) CHILD CARE PROVIDER.—The term ‘child care provider’ means a provider who receives compensation for providing child care services on a regular basis, including an ‘eligible child care provider’ (as defined in section 658P of the Child Care and Development Block Grant Act of 1990 (42 U.S.C. 9858n)).
“(D) SCHOOL.—The term ‘school’ means an ‘elementary school’ or ‘secondary school’ as such terms are defined in section 8101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801).
In summary, the expanded FMLA provides that employers with under 500 employees must provide effectively 10 weeks of paid leave to employees that are sick or caring for a child out of school due to a Covid-19 closure. Note that this is for an employee that cannot telework.
The law takes effect April 2, 2020.
Employers should now carefully consider their options before the law takes effect.
Our office stands ready to assist. Please book a call to see how we can help you consider your options with employees.
The Small Business Administration (SBA) has published some guidance for business owners on their website. Below is a summary of some important points:
The following interim guidance may help prevent workplace exposures to acute respiratory illnesses, including COVID-19, in non-healthcare settings. The guidance also provides planning considerations if there are more widespread, community outbreaks of COVID-19.
To prevent stigma and discrimination in the workplace, use the guidance described below and on the CDC’s Guidance for Businesses and Employers web page.
Below are recommended strategies for employers to use now. In-depth guidance is available on the CDC’s Guidance for Businesses and Employers web page:
If your business needs some employment law guidance or contract review (force majeure clauses), our office is offering discounted phone consults through March 31. Reach out to our office to book a call.
Sarah E. Holmes is a Philadelphia business attorney and strategist that helps start ups and established businesses looking to expand, protect their assets and increase their profits in an approachable, down-to-earth way. When you're looking for a business lawyer in Philadelphia, the Main Line or New Jersey, we can help.