A Post-Pandemic Business Handbook: How Small Business Owners Can Protect Against Lawsuits

Thanks to the COVID-19 pandemic, compiling a business manual is even more complex than before, often involving remote work guidelines, Zoom meetings, and vaccine considerations.

Here’s what small business owners should consider, according to labor and employment attorney Michael Landen, who is a partner at Kluger, Kaplan, Silverman, Katzen & Levine in Miami. There, Landen manages and litigates matters such as employment contracts, harassment claims, non-competition agreements, handbooks and policies.

What legal challenges have employers faced regarding COVID-19 vaccination mandates, and what should they consider if considering requiring vaccinations?

Although the Supreme Court partially blocked the Biden administration from enforcing its vaccine or testing requirements for large private companies, as we have seen, many companies have implemented their own rules and mandate to vaccination for employees. And while there are benefits to having a vaccinated workforce, employers who need a COVID-19 vaccination can potentially open themselves to a lawsuit or other issues.

Under Florida law, employers can mandate vaccinations if there is a legitimate business requirement to do so, which means employers must prove that receiving the vaccine is an integral part of an employee performing the duties. of his post. Outside of healthcare-related jobs, work situations in other industries can be a bit harder for employers to require vaccinations. The goal of simply having a healthy workforce is likely an inadequate justification for a company-wide vaccination mandate.

Businesses that have successfully operated remotely must also continue to take additional considerations into account. For example, employees may argue that they would rather continue working remotely than get vaccinated and return to work in person. The onus is on employers to prove that in-person work is an integral part of their business.

Additionally, Florida companies deciding to mandate the COVID vaccine should be cautious. Under Florida legislation passed in November, employees can choose from certain exemptions if a private employer implements a vaccination mandate, including but not limited to health or religious concerns.

As an alternative to vaccination requirements, employers may still have the option of requiring these employees to wear masks or other PPE or submit to testing. However, employers should be careful with these matters and should consult a labor lawyer for advice and guidance.

Additionally, if an employee can prove they are at risk for a severe reaction and cannot be vaccinated, the employee may be protected by the Americans with Disabilities Act (ADA). In such cases, an employer should consider making a reasonable accommodation to allow these employees to continue working without a vaccine. Failure to make a required accommodation could leave the employer vulnerable to a potential lawsuit.

These are all important considerations that should be fully explored by all employers, especially given the ever-changing workplace landscape in light of COVID-related concerns.

Do companies need to update their written policies to account for expectations around vaccines, sick leave, etc. ?

Yes, companies should update their written policies to reflect vaccine and sick leave expectations. Employers who are quicker to adopt new protocols and update their company manuals could mitigate potential responsibility and employment conflicts.

What should employers consider when updating a company manual in light of the shift to remote working and hybrid work models?

Michael Landen, labor litigation partner at Kluger Kaplan in Miami.  Courtesy picture Michael Landen, labor litigation partner at Kluger Kaplan in Miami.

If an employer has implemented new processes or requirements related to COVID-19, the information should be clearly stated in the company manual and communicated openly to employees. Likewise, changes to working hours and platforms are best reflected in an updated manual or policy manual.

With some companies offering permanent work-from-home options, the updated manual should address remote work guidelines such as telecommunications best practices, documentation requirements and tips for remote meetings.

Employers also need to consider what security controls and data protection practices need to be implemented as companies have adopted more cloud platforms while working remotely. With staff managing and accessing intellectual property, confidential and personal information from a remote work environment, clear protocols and security controls need to be reviewed. Manuals should outline plans for updating passwords and keeping security up-to-date, enabling encryption of routers and provisioning of trusted networks.

Finally, company manuals should also outline dress code expectations and other policies for in-person work environments, such as whether employees will be required to wear masks in common areas, personal work or when interacting with co-workers and clients. The manuals should also outline home dress code requirements for Zoom or other virtual meetings for employees able to work remotely.

What other trends do you observe in labor law?

Many employers are struggling to hire due to the lack of available manpower. Additionally, companies need to be more careful than ever in the proper conduct of dismissals as, unfortunately, there has been a shift where employees seek to sue immediately upon dismissal, often without having experienced discriminatory behavior or other actions that could engage the responsibility of a company. In other words, suing a former employer has become all too common.

Employers should ensure that they properly document employee performance issues and have sufficient rules, manuals, and other workplace documents in place to protect employers in connection with these types of claims. Therefore, it is very important that employers consult their employment attorney to help them resolve these issues.

Michael Landen is a partner at Kluger, Kaplan, Silverman, Katzen & Levine in Miami. He focuses his practice on commercial litigation and labor and employment law.