MINIMIZE COVID 19 LIABILITY : USE MEDIATON

As the country begins to re-open from the Covid -19 Pandemic, businesses of all kinds, and, their employees, will face a critical a need for an efficient and viable method for resolving issues arising from the duties the law imposes on employers and businesses reopening for business. Employees want to return to work to a safe working environment. Employers want their employees to come back to work and are willing to take reasonable steps to create a safe working environment. The public wants to go out and eat in restaurants and shop at stores as long as there is minimal risk of exposure to the virus. Restaurants and stores are willing to implement reasonable procedures to provide precautions to limit exposure to the virus. However, businesses and individuals have differing opinions as to the appropriate steps that should be taken to mitigate the risks associated with the virus. As a result, employers and businesses face potential liability if an employee or customer catch the virus and suffer serious injury or death. In order to minimize liability, it is essential that employers and businesses take the steps mandated by federal and state law to create a reasonably safe environment. Time is also of the essence, as every day that a business is not getting back into business is a day that threatens someone’s livelihood. A structured negotiation at the outset can best facilitate productive and efficient agreements.  And, should a dispute nevertheless arise regarding application of laws, mediation, rather than litigation, is the intelligent if not only, reasonable choice to resolve the dispute. Employment laws already require a give and take or interactive process between employee and employer to arrive at a reasonable compromise regarding the steps necessary to create a reasonable safe working environment. It only makes sense to put some structure and expertise in support of this process. For example, the Americans with Disabilities Act (“ADA”) requires employers to make reasonable accommodations to the needs of employees arising from Covid 19. The question of whether an accommodation is required and, if so, what is reasonably required will vary from employee to employee. To determine whether a reasonable accommodation can be identified, employers and employees are required to engage in an interactive process which should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. An accommodation is not reasonable, and an employer is not required to make an accommodation, if it imposes an undue hardship or burden on the employer’s business. Reasonable accommodations” may comprise job restructuring, reassignment to a vacant position, modification of equipment, part-time or modified work schedules and permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment. It is clear an employer in order to comply with ADA is required to make a series of judgments about what it can afford to do to accommodate an employee without imposing an undue hardship on the business. How many employees can have modified work schedules, work from home, receive paid leave and the company remain in business? Which employees can be terminated ? If an employer makes the wrong decision regarding any of these judgments, it can be subject to liability.

The choice then facing the business is to either make such judgments unilaterally with the hopes they will be supported, and face conflict if there is a dispute, or, structure negotiations at the outset to develop consensual judgments, using mediation to resolve any remaining disputes. Similar issues will arise with respect to businesses open to the public. Which employees can be terminated because of concerns of other employees or customers about an employee having the virus or not observing social distancing? What do you do about an employee who occasionally fails to wear a mask, refuses to be subjected to testing or observe social distancing? What can you do about a customer who refuses to comply with social distancing? Which customers can you turn away because of a concern that they are older and are readily susceptible to the virus? Each one of these judgments which an employer must make potentially subjects the business to liability. All applicable laws require tradeoffs between the risks associated with the goal of opening for business and the goal of a safe environment. Litigation arises because one party disagrees with the judgment of the other party as to acceptable level of risk associated with the virus in the workplace or public business. Litigation, however, could crush the goals of both the business and the employees, as both parties, as it  is a time consuming expensive process which delivers a decision far too late and often unsatisfying to both parties and therefore will not serve the immediate needs of the public, employees and business owners. The alternative is mediation which is a lower cost and flexible process which by definition can more readily address the specific needs of the multitude of varying situations which will have to be addressed if businesses are going to re-open. Mediations is flexible process which does not have to be limited to resolving claims. Rather, it is part of a family of dispute prevention and resolution processes which include structure negotiations, an approach that can mitigate conflict from the outset. If disputes arise, employers can implement third party mediation at any stage in the interactive process even before an employee gives notice of a claim and thereby avoid litigation all together. Furthermore, the financial cost and distraction associated with litigation can be minimized through the use of mediation. The impact of Covid 19 was limited because communities cooperated in staying at home. That same spirit of cooperation will be necessary to re-open including cooperating in the resolution disputes. Mediation is perfectly suited to that spirit of cooperation because it is itself a process whereby mediators facilitate reaching an agreement to resolve a dispute.

SENATUS is a local dispute resolution firm offering both structured negotiation as well as mediation services. The SENATUS team understands the many issues and needs arising from the Covid-19 crisis, and its members have experience successfully resolving these types of matters. For more information about SENATUS, visit www.senatusadr.com or contact either of the firm’s co-founders – Lucas Vande Sande ([email protected]) or Larry Freedman ([email protected]) to learn more.