One of the nation’s leading experts on auto dealers and labor law has been a rich resource during COVID-19. We want to thank our friend Charles Caulkins, President of Fisher Phillips, and offer our dealers these recent words of wisdom and resources relative to dealer’s liability for employees and customers.
Q: We asked Charles about getting employees to release dealers from liability for COVID-19.
A: “There is no “clear” answer. Generally a release of liability for future incidents is not enforceable. It also has some negative implications with employees. Rebuilding trust with returning employees will be a challenge for many employers. We expect unions to use this as a wedge.
Workers’ compensation insurance generally covers injuries and illnesses that are caused “unintentionally” by an accident or exposure in the work environment. However, because the damages recovered in a workers’ compensation claim are generally capped by statute, plaintiffs’ lawyers may ignore the statutory workers’ compensation system. They may instead file a lawsuit in court claiming intent or willfulness, as they recognize that the potential recovery may be much higher. In Florida, the standard to get around the workers comp exclusive is if the employer engaged in near criminal conduct.
To create a barrier for this potential claim or liability, Florida employers should have a robust safety at-work policy to protect them from liability claims from employees and customers. This includes following the CDC’s Interim Guidance for Businesses, including best practices for social distancing, Guidelines for Cleaning and Disinfecting the workplace, and quarantining employees who have an exposure to a confirmed COVID-19 case, found at the CDC’s Public Health Recommendations for Community Exposure. Employers should also ensure that employees are provided with and properly wearing all required PPE.
It will be difficult to get past the exclusive remedy of workers comp if employers are engaging is these “best practices.”
We have an extensive number of memos, FAQs and free forms on our web site addressing the COVID-19 crisis: www.fisherphillips.