Coronavirus issue / employment / customers March 28, 2020

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Coronavirus issue / employment / customers
March 28, 2020

See webinar schedule below.

Coronavirus issue / employment / customers

Potential liability to subscribers

Ken
            It just occurred to me - - - what would the liability be if an alarm company ( or any company for that matter) were to send an employee to a customer’s home or business and subsequently the employee and the customer were to contract the virus traced back to the employee, and a death were to occur.
            What do you think the eventual fallout regarding this kind of scenario is going to be?
Gene
Reliable Alarm

Response

            There are a few legal issues involved.  First, you are not in violation of any law, presently, preventing you to work in the alarm industry.  The alarm industry is deemed “essential” and exempt from Executive Orders requiring a business shutdown.  This is important because if you are operating your business in violation of law then you increase the chance of liability.
            Second, is how “negligence” is generally defined; it’s the failure to exercise reasonable care that causes injury.  So you need to depart from reasonable care and that departure needs to be the proximate cause of the injury.
            Applying these principles, if you knowingly send an infected tech to a subscriber’s home, that is likely negligence.  If the subscriber is able to prove that’s how the subscriber contracted the virus, you could be sued and lose.  But that’s an extreme fact scenario because in all likelihood it’s going to be very difficult to prove your tech infected the subscriber.
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Can I fire an employee during this crisis
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Ken
            An employee advised me that he has to stay home to care for someone else during this crisis.  I was considering terminating this employee before all this mess started and this is really the last straw.  I am not in a state that is required to shut down my alarm business.  Are all employees now protected by some law against firing?
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Response

            The quick answer is that you can fire the employee; any employee who is an “at will” employee for any or no reason, unless that employee is in a protected class.  You can’t fire someone BECAUSE they are in a protected class, though you can certainly fire someone if in a protected class who deserves firing.  Protected class includes, gender, race, religion and a few other categories.  There is no special protection during this coronavirus crisis for employees.

When do I have to pay laid off employees

Ken
            When we lay off people - is it indeed the law we have to pay them through the end of that work week? And I can’t lay-off more than 25 without 90 days right (how ridiculous is that). So I can only go up to 25 for fast savings, correct.  And lastly, “unpaid leave with your job available when the dust settles”, can that have an instant effect on pay?
Preparing for the worst.
Thanks
Name withheld

Response
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            You can lay off employees now.  They will collect unemployment or other government benefits.  Employees are entitled to be paid for the time worked and any vested and accrued time for vacation or sick leave.

Can you screen your customers

Ken
            Do you know what the protocol is if I have a service call to go to and I screen it first by asking the customer if anyone in their building tested positive for the Coronavirus, and they say yes, should I go to the service call.
Thanks,
Charlie
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Response

            What was normal weeks ago is not today.  It’s only common sense to ask a customer if there is any known infected people in the building.  If you get a yes you can decline the call.  Customers are going to ask you to assure them that your tech is not infected.  Of course we are limited to knowing only those who show signs, symptoms, or the virus, or flu, or whatever aliments they may have.  Knowledge of infection or even exposure is going to be difficult and maybe impossible to establish, but if you ask me to create the scenario then I can create the liability.

do you need waivers

Ken
            In states where there is not a shelter-in-place order in effect, many integrators are still working. In fact, some have told me they are doing commercial work in the daytime hours at schools and restaurants that they otherwise would have had to do at night.
            But my question is: Should smart home integrators and alarm companies that continue to work in homes and businesses during the coronavirus outbreak have their customers sign a “coronavirus” waiver?
If a client contracts the virus, can they actually “prove” they got it from a technician?
Jason Knott, Chief Content Officer
CE Pro
Framingham, MA

Response
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            I asked K&K’s Employment Dept to answer this one:
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Jason,
            We are in receipt of your question. It is best practice to confirm all appointments in advance and screen all clients by phone for symptoms before sending any technician out. You can also have the technician confirm fevers on site before he enters the home. You also should screen all technicians daily – ask if they have a fever or any symptoms, and have them sign off they do not. Adopt a complete OSHA and DOL approved safety checklist.
            Customers could come after you if they think a technician spread corona, that’s the beauty and burden of our legal system. At this point you are very insulated because the disease is so widespread there is no longer community tracing. It is a good idea to adopt a general release customers must sign before receiving on-site service.
            If you want us to draft up or help with any protocols let us know. We’re here to help.   Be well!
Jennifer Kirschenbaum, Esq.
Kirschenbaum & Kirschenbaum, P.C.
200 Garden City Plaza
Garden City, New York 11530
(516) 747 - 6700 x. 302
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Additional response

            I don’t think you need a release from each customer. I think it’s overkill.  Also, if you have the All in One agreement you already have all the contractual protection you can reasonably ask for.  Be sure to get the All in One if you don’t have it; be sure to use it if you do have it, and be sure to update it regularly.  Presently coronavirus is not mentioned.  Let’s hope it doesn’t have to be included in a 2021 update.

Webinars Series 2020 - Register now

          We are pleased to offer the below FREE Webinars. Originally scheduled as Roundtable discussions at the ISC we are now opening up attendance in webinar format. Please sign up for one or more webinars and we hope you’ll participate in the discussion. Other webinars TBA
            For those of you who had a Free private meetings scheduled with Ken Kirschenbaum at the ISC show, please call Stacy Spector,Esq at 516 747 6700 x 304 to re-schedule the meeting via Skype
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When: April 7, 2020 at 12 PM ET
Topic: discussion on the current state of the Financial/Capital Market Stability in the Security Industry and necessary agreements needed for security companies
Presented by:  Troy Iverson, VP of Sales, Brian Davis, CFO of AvantGuard Monitoring Centers
Hosted by: Ken Kirschenbaum, Esq
Who should attend: owners, CFO, managers,
Register here:  https://attendee.gotowebinar.com/register/7558739325686839811

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com