Founding Partner Robert Lewis Speaks to the South Florida Business Journal on “Liability lawsuits: What Should Businesses Worry About as They Re-Open?”

By Ashley Portero

May 13, 2020, 2:38pm EDT

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As some businesses prepare to reopen after nearly two months of closures, some owners fear they could face liability lawsuits if they open during the Covid-19 pandemic.

A recent National Federation of Independent Business survey of its members found 70% of small business owners are concerned about liability claims when reopening their businesses.

As the center of the Florida’s Covid-19 outbreak, businesses in South Florida must be adamant about following reopening guidelines to the letter to protect themselves from potential litigation, said April Boyer, a partner with Miami law firm K&L Gates.

With 24,642 confirmed infections, South Florida’s three counties account for 58% of Florida’s Covid-19 cases. Palm Beach County, which has 4,176 reported cases as of Wednesday’s update by the Florida Department of Health, allowed restaurants and retailers to resume operations at 25% capacity on Monday.

Miami-Dade and Broward set a target reopening date of May 18. On Tuesday, Miami Beach officials announced hair salons and museums could open May 20, followed by restaurants and sidewalk cafe’s on May 27.

“I would recommend that businesses create a checklist of tasks to follow before they open up,” said Boyer, whose practice focuses on employment law and complex commercial litigation. “You can’t just turn on the lights and open your doors for customers.”

That plan could address issues such as how the business will handle employee sick leave, whether it will administer employee temperature tests before shifts, how often it will disinfect surfaces and how it will enforce six-foot social distancing, she said.

Employee sick leave

One of the primary concerns is how businesses should address workers who may be especially at-risk of contracting the virus, Boyer said.

Under the Americans with Disabilities Act, employers are required to offer reasonable accommodation workers with physical disabilities who can otherwise perform their jobs.

Individuals with underlying health conditions – such as respiratory illnesses or diabetes – could face serious complications if they contract Covid-19, according to the Centers for Disease Control and Prevention. Because of that, employers could be liable to litigation if they force those employees to return to work without taking steps to protect them from exposure.

“That could include anything from allowing them to work from home when others return to the office, or offering extended sick leave to essential workers who don’t have remote work options,” Boyer said.

Shani Rivaux, a partner with Miami firm Pillsbury Law, said employers should also permit workers to stay home to care for parents, spouses or children who have the virus, when necessary. Under the Family and Medical Leave Act, businesses –  including public agencies and private sector companies with more than 50 employees – must provide 12 weeks of unpaid leave for eligible workers who need to care for family.

Companies have no legal obligation to accommodate healthy workers who are simply afraid of contracting the virus, Boyer and Rivaux said. But Rivaux suggests employers communicate with employees who may that concern and remind them of the policies and procedures in place to protect the health of workers.

“If they don’t, there’s the risk the business could see reputational damage if word got out,” she said. “You also want to be cognizant of how dismissing those concerns could affect employee morale.”

When in doubt, look to guidelines

Under Florida’s phase one reopening plan, restaurants can resume in-person dining at 25% capacity. While many restaurant owners have noted resuming businesses at such low capacity may not be cost effective, they shouldn’t go above capacity restrictions, said Robert Lewis, founding partner of Coral Gables-based Spiritus Law Firm.

“It’s not just a question of if restaurants can open,” he said. “The big question is if restaurants can open safely.”

Under the state’s phase one plan, restaurants must enforce lower capacity and six-foot social distancing for in-person diners. Some restaurants are also requiring employees to wear masks and gloves, printing disposable paper menus, and erecting plastic barriers between booths to protect diners, Lewis said.

Lewis said restaurants owners must ensure they are abiding by state and local guidelines as they reopen.

“They could risk being sanctioned, fined or potentially shut down,” Lewis said. “Your best chance of avoiding liability is to follow the rules, implement best practices, and do your best to open safely,” he said. “If you don’t, you could risk being sanctioned, fined or shut down.”

While restaurants that do not meet safety guidelines could risk a lawsuit, Lewis said it “remains to be seen” what those lawsuits could look like.

Enforcement

According to Gov. Ron DeSantis’ phase one plan, businesses that exceed 25% capacity could face a second-degree misdemeanor and a fine up to $500. The order said businesses could also face enforcement actions from regulatory agencies that oversee them.

Because Miami-Dade County businesses fall under an emergency order, businesses that violate guidelines could be hit with a fine of up to $500, face up to 180 days of imprisonment, or both, said Patricia Abril, assistant director of communications for the office of Miam-Dade County Mayor Carlos Gimenez.

Boyer noted there isn’t a one-size-fits-all approach to workplace Covid-19 safety. Restaurants, retail stores, offices and manufacturers will all face different challenges as they develop post-pandemic workplace safety procedures.

“The best approach is to evaluate how the virus could be transmitted in your workplace or industry, and develop a safety check-list from there,” she said.

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About Spiritus Law:
Spiritus Law is an entrepreneurial law firm focused on business regulatory licensing, trade practice compliance and business conflict resolution for highly regulated industries dealing in alcohol production and distribution, hospitality services, commercial development and international business transactions. The Firm is founded on traditional principles of client counseling and teamwork with a cutting-edge twist on regulatory innovation and modern problem-solving. We focus on the business needs of individual clients and leading industry members so we can advance business objectives and influence regulatory changes that guide our clients’ business operations. Spiritus Law combines a unique blend of professionals, including attorneys, government consultants, licensing assistants and paralegals to assist its diverse clients. We leverage our unparalleled experience working with government agencies and judicial courts on the federal, state and local level to develop compliance business operation strategies and resolve business conflicts and disputes. Our modern approach to transparent client representation and employee engagement defines our collaborative spirit and progressive energy.

Core Services:
Primary service areas include Alcohol Licensing & Regulatory Compliance, Alcohol Production & Distribution Transactions, and Hospitality Regulatory Compliance & Permitting. The Alcohol Industry Group focuses on providing complete food and alcohol licensing and regulatory services in the development of licensing structures and business operational guidelines for the manufacturing, importation, purchase and retail sale and service of alcoholic beverages. Our firm services an array of industries, including alcohol producers, sports teams, hotels, theme parks, movie theaters, grocery stores, liquor stores, bars, commercial developers and more.

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