COVID And Small Business Lawsuits

It is an understatement to say that small businesses have struggled to survive the COVID-19 crisis. While the country slowly re-opens for business, many individuals and businesses will be reeling from the consequences for a long time. While individuals who were hurt by others’ recklessness during COVID-19 certainly deserve recompense, there has been a striking number of lawsuits against small businesses, many of which are unfounded or just plain unfair. If you are a small business facing COVID-19 lawsuits – or are concerned about future lawsuits – reach out to the Law Offices of Jonathan Fleisher, Esq. at 732.360.6409 to learn how to protect yourself and your business.

Common COVID-Related Lawsuits for Small Businesses

The bottom line is that many people who were hit hard during COVID-19 are looking for compensation for their injuries and suffering. For many people, this means turning to civil litigation.

Employees

Employment litigation related to COVID-19 has spiked. Some of the most common issues raised in COVID employment lawsuits include:

• Labor issues
• Remote work and leave policies
• Wrongful discharge
• Employment discrimination
• Wrongful death
• Negligence
• Unsafe workplace
• Breach of contract

Unsurprisingly, many employees feel as though they had to work in unsafe, unsanitary conditions or risk losing their jobs. In some cases, employees contracted COVID on the job, and many even lost their lives, despite the employer’s rigorous adherence to New Jersey’s health and safety mandates. However, it has been, and remains, unclear to what extent employers are going to be liable for their employees’ exposure to COVID-19. Generally, employers must provide a reasonably safe work environment for their employees, but the novelty of the Coronavirus leaves the question of the employer’s responsibility unanswered.

A newer issue is whether employers can require their employees to be vaccinated before returning to work. The short answer is under New Jersey law, yes, employers can require their employees to be vaccinated, according to the New Jersey Department of Labor and Workforce Development. Although this is fairly well-settled, small businesses who wish to enforce this vaccine requirement should be prepared for pushback, and possibly even lawsuits.

Customers

Small businesses are also on the receiving end of an influx of lawsuits from customers. While large companies have been facing negligence lawsuits from customers since the beginning of the pandemic, big corporations can generally afford to defend against this type of litigation. Small businesses, on the other hand, have been the subject of hundreds of negligence lawsuits, and the cost of defending the suit alone can put them out of business.

Most at-risk are businesses that did not strictly follow COVID protocols. Though it can be really difficult to prove that a business caused the virus to be transmitted, a grossly or egregiously negligent failure to adhere to mandatory state guidelines makes it more likely that a patron would be able to succeed in a negligence case for injury or death resulting from the business’s conduct. On the other hand, businesses that safely conducted ordinary operations in compliance with state laws and executive orders have a strong argument against liability.

Liability Protections

New Jersey, like many states, passed a law granting limited liability protections to certain organizations during COVID-19. Under Senate Bill 2333, immunity was granted to healthcare professionals and facilities during COVID-19. The liability shield only applied to:

• Civil liability for injuries or death in the course of providing care to treat or prevent the spread of COVID-19, and
• Civil and criminal liability for decisions relating to the allocation of ventilators and scarce medical resources.

This protection is very narrow; it only applies to healthcare workers and facilities, and it is limited to actions undertaken in good faith. However, New Jersey has also introduced two bills that would propose immunity for businesses for COVID-19 exposure claims occurring on the employer’s premises. This would exclude willful misconduct, reckless infliction of harm, or intentional infliction of harm. Though this bill was not passed, legislation like this could greatly impact the extent of small businesses’ liability for COVID-19 exposure going forward.

How to Avoid Pandemic Litigation

Although it is impossible to avoid all litigation, especially frivolous litigation or lawsuits in an unsettled area of law, there are a few ways small businesses can limit their risk of COVID-19 lawsuits.

1.  Prioritize workplace safety. For many employees, workplace safety was one of the biggest areas of concern during COVID-19. There were dozens of unsafe workplace lawsuits filed over the last year. Provide needed protective gear, and, if possible, remain flexible with employees who are able to work from home.
2. Look out for discrimination when bringing workers back to work. If, like many small businesses, you needed to furlough or let employees go during the pandemic, be careful when recalling workers, as this is an area ripe with discrimination litigation. Use objective, non-discriminatory criteria when deciding which workers to bring back, and try to avoid decisions that will have a disparate impact on protected classes.
3. Be sure that new policies do not violate the ADA. While it may be tempting to screen new and returning employees before they come to work, be prudent about what medical questions you ask them.
4. Avoid the appearance of retaliation. There was an increase in retaliation claims. Avoid punishing – or taking action that looks like punishing – employees when they exercise their rights, such as taking family and medical leave or filing a complaint.

Talk to a New Jersey Business Lawyer and Defend Your Small Business from COVID-19 Lawsuits

You may be struggling to keep your business running after a year of economic and social disruption. The last thing you need is an onslaught of civil litigation. If your small business is facing a lawsuit, reach out to the Law Offices of Jonathan Fleisher, Esq. at 732.360.6409 for a free consultation. Let us help keep your business running.