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Businesses weigh liability issues for returning workers after reopening

A BJ's employee keeping the door open only

A BJ's employee keeping the door open only allows one person to enter the store at a time in Freeport on April 3. Credit: Newsday / J. Conrad Williams Jr.

The signs telling customers to wear masks are up in the vestibule, and the hand sanitizer dispenser is located by the front door. Masks are offered to those without them, and those who refuse have the option to conduct their business with an employee outside.

Customers who refuse his safety precautions can go elsewhere, said Evan Bloom, co-owner of a family signage and printing business with three franchises on Long Island. He doesn’t want to expose his employees or customers to the coronavirus that causes COVID-19 or be exposed to a lawsuit by someone claiming they were infected in his establishments.

“I’m willing to not do business with the person if they are going to be difficult,” he said. “As a small business, I don’t have a large bankroll to settle lawsuits. We are a local small business. We want to try to put all the proper precautions out there so if someone did sue, we could say we took all these precautions.”

In New York State, an executive order by Gov. Andrew M. Cuomo directs local governments to mandate face coverings be worn in public areas where social distancing of at least 6 feet may not be possible. But nationally, businesses — from meatpacking plants to supermarkets, warehouses and small retail stores — have been uneven in how or even whether they enforce such safety guidelines. 

Organizations like the U.S. Chamber of Commerce are calling for a federal waiver of liability against workers’ claims stemming from COVID-19 infections, even as businesses on Long Island rush to prepare for the safe return of workers.

U.S. Senate Majority Leader Mitch McConnell (R-Kentucky) has said that no future COVID-19 aid package will proceed without it. Congressional Democrats oppose the waiver and say businesses that follow federal safety guidelines would be protected from litigation.

A liability waiver, opponents say, could shield employers from consequences even if they neglect safety precautions, including providing protective gear and testing.

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“I think it gives them a license not to be as safe. It’s a license for negligence,” said Lenard Leeds, a plaintiffs attorney from Leeds Brown Law PC with offices in Carle Place and Manhattan, pointing to the difficulty in suing nursing homes, which require a high threshold of gross negligence for a suit. “If you could sue for standard negligence, they would be more careful about their day-to-day operations. I think that standard has resulted in unnecessary deaths.”

Edward Steinberg, a malpractice and accident attorney whose practice covers Long Island, New York City and Westchester County, is the president-elect of the New York State Trial Lawyers Association. He is worried that such a waiver would place the concerns of business over the public health as the economy reopens.

“Although the everyday challenges from this pandemic may be entirely new, Mitch’s political playbook is the same old, same old, once again putting the profits of big business over the health and safety of consumers and exploiting workers,” Steinberg said in a statement. “Given everything New Yorkers have been through, Mitch’s dangerous assault on our legal rights is both absurd and outrageous."

But business groups and attorneys representing employers say the majority are trying to comply with a rapidly changing array of guidelines and rules and want to keep employees and customers safe.

“It was like a blitzkrieg of new legal requirements that employers overnight had to get compliant with,” said Christopher Valentino, managing principal of the Long Island office, in Melville, of JacksonLewis, a national firm that represents management in employment and labor cases. “The challenge was in some circumstances you have legislation that is now being contradicted or being interpreted differently by subsequent guidelines from different agencies. You have a situation where employers are trying to comply, but the workplace law landscape was and is constantly changing.”

Valentino said he believes the liability waiver initiative would try to provide “a layer of protection” for employers adjusting to shifting rules and would not protect against gross negligence. In any case, he said, New York employers are generally insulated by the Workers Compensation Law, which requires employees to file a claim through Workers' compensation for damages rather than sue except in cases of intentional harm.

One regional supporter of the liability waiver is the Association for a Better Long Island, a trade group with members in the development and real estate industry. Its executive director, Kyle Strober, said: “Our biggest fear is that in three months, instead of watching mesothelioma commercials, lawyers are advertising for COVID-19 victims. While we understand there will always be bad actors who exhibit gross negligence, we need to protect the business owners who follow proper safety protocols so that they are not susceptible to frivolous lawsuits.”

Bloom said his family's Sir Speedy franchises in Westbury, Melville and Hauppauge  are preparing signs and acrylic barriers for business customers busy modifying workplaces in anticipation of reopening when conditions permit.  The demand for such barriers between workstations, graphic floor designs directing people where to stand and walk and signage directing people to wear masks already have led to delays in getting materials, he said.

“Businesses are taking this seriously much more than I expected,” Bloom said.

Meanwhile, videos of crowding inside and outside of reopening parks, bars and restaurants in New York and elsewhere show the difficulties in maintaining social distancing guidelines.

There have been reports of violence against attempts to enforce the wearing of masks. 

In Michigan, a store security guard was fatally shot after denying entrance to a shopper whose daughter was unmasked. In California, a guard’s arm was broken in a brawl with two unmasked customers at a Target. A flight attendants union called for federal guidelines on passenger masks in flight, after airlines said its rules on passenger masks in flight wouldn’t be enforced by attendants, who were directed to use de-escalation techniques and persuasion.

Some governments, from Stillwater, Oklahoma, to the state of Ohio, quickly withdrew mandates to wear masks in the face of sometimes belligerent noncompliance.

On Long Island, there have been thousands of public complaints about businesses improperly staying open or not enforcing social distancing or other rules. But as of early May in Nassau, only 22 summons were issued.

“You can’t have a complete waiver of liability — unfortunately there is always going to be that small percentage, those bad apples who will ruin it for everyone else,” Bloom said. 

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