Dealing with Violent Customers Who Refuse to Wear Masks

wearing a mask at work

As many states and municipalities have issued mandatory mask orders for businesses that are open to the public, operators like retailers and restaurants have been thrust into the front lines of reducing the spread of the virus by requiring customers to wear masks when on their premises.

This has led to confrontations that sometimes result in violence — and even in the deaths of some workers.

Due to the volatility of some of these confrontations, the Centers for Disease Control and Prevention has issued a guide for limiting workplace violence associated with COVID-19. The guidance recommends:

  • Offering customers options to minimize their contact with others and promote social distancing. These can include curbside pick-up; personal shoppers; home delivery for groceries, food and other services; and alternative shopping hours.
  • Posting signs that let customers know about policies for wearing masks, social distancing, and the maximum number of people allowed in a business facility.
  • Advertising COVID-19-related policies on your website.
  • Providing employee training on threat recognition, conflict resolution, non-violent response, and on any other relevant topics related to workplace violence response.
  • Putting in place steps to assess and respond to workplace violence. Response will depend on the severity of the violence and on the size and structure of the business. Possible responses may include reporting to a manager or supervisor on-duty, calling security or calling 911.
  • Remaining aware of and supporting employees and customers if a threatening or violent situation occurs.
  • Assigning two workers to work as a team to encourage COVID-19 prevention policies to be followed, if staffing permits.
  • Installing security systems (e.g., panic buttons, cameras, alarms) and training employees on how to use them.
  • Identifying a safe area for employees to go to if they feel they are in danger (e.g., a room that locks from the inside, has a second exit route, and has a phone or silent alarm).

Training on warning signs and response

Employee training on workplace violence typically covers definitions and types of violence, risk factors and warning signs for violence, prevention strategies, and ways to respond to threatening, potentially violent, or violent situations.

Warning signs — As part of training, employees often learn verbal and non-verbal cues that may be warning signs of possible violence. Verbal cues can include speaking loudly or swearing.

Non-verbal cues can include clenched fists, heavy breathing, a fixed stare and pacing. The more cues shown, the greater the risk of violence.

Response — During training, employees also learn how to appropriately respond to potentially violent or violent situations.

Responses range from paying attention to a person and maintaining non-threatening eye contact, to using supportive body language and avoiding threatening gestures, such as finger-pointing or crossed arms.

Consider implementing a “tap-out” system that allows an employee to make a signal for a supervisor or other employee to step in and the at-risk staff member to walk away.

Employee responsibilities guidelines

  1. Attend all employer-provided training on how to recognize, avoid and respond to potentially violent situations.
  2. Report perceived threats or acts of violence to your manager or supervisor, following any existing policies that may be in place.
  3. Remain aware of and support co-workers and customers if a threatening or violent situation occurs.
  4. Do not argue with a customer if they make threats or become violent. If needed, go to a safe area, (ideally, a room that locks from the inside, has a second exit route, and has a phone or silent alarm).
  5. Do not attempt to force anyone who appears upset or violent to follow COVID-19 prevention policies or other polices or practices related to COVID-19 (such as limits on the number of household or food products that can be bought).

Courts Rule COVID-19 Business Interruption Claims Invalid

business interruption

As second court has ruled that an insurer does not have to pay business interruption claims by businesses that saw their revenues run dry due to the COVID-19 pandemic, which will further make it difficult for business to successfully file such claims.

In the most recent case, a Superior Court judge in the District of Colombia in August ruled that an insurer is not obligated to pay business interruption claims of the owner of several restaurants after the mayor ordered all restaurants to close in response to the coronavirus. The judge ruled that in order for the business interruption claims to be valid there must have been physical loss or damage and that the plaintiffs failed to prove any they suffered any such losses.

The ruling comes on the heels of a Michigan state court decision in July that also sided with Michigan Insurance Company in a case brought by the owner of two restaurants whose $650,000 business interruption claim the insurer had denied.

These two cases are closely following the wording of typical business property policies that also include business interruption coverage caused by physical damage.

In the D.C. case, there were several plaintiffs: Lead plaintiff Rose 1 LLC, which is owned by chef Aaron Silverman, and which operates a number of upscale restaurants including Rose’s Luxury, Elaine’s One, Pineapple and Pearl’s and Little Pearl. Other plaintiffs included Buttercream Bakeshop, Karma Modern Indian, El Cucho, Bar Charley, La Vie and Beuchert’s Saloon.

Mayor Muriel Bowser had issued orders on banning indoor dining, for residents to shelter at home and for all non-essential businesses to close. The restaurants filed claims on their commercial property policy with Eire Insurance Company, which included coverage for loss of income and/or rental income from a partial or total interruption of business that results directly from loss or damage to the insured property.

The restaurants after the claim was rejected, arguing that the loss of use of their restaurants was a direct physical loss because the closures were the direct result of the mayor’s orders.

The plaintiffs argued that the losses were physical because the coronavirus is “material” and “tangible.” But, the judge pointed out that the plaintiffs failed to show that the virus was present in their properties and that the mayor’s orders did not materially or tangibly affect the restaurants.

Business interruption cover

Business law attorneys say business around the country have filed hundreds of coronavirus-related business interruption lawsuits after seeing their claims rejected. The issue mainly comes down to policy wording.

Most business property policies also cover business interruption claims, but policies usually specify that there must be physical damage to property. The policies are typically tapped to losses resulting from damage to a business caused by a natural catastrophe. Additionally, most business interruption portions of policies explicitly exclude pandemic.

Most policies require there to be some type of direct physical loss or damage to either your premises or some part of your supply chain in order to trigger business interruption coverage. Without that trigger, insurers would likely argue that a virus in your facility is not physical loss or damage.

But these are early days in the litigation front as more cases are decided and appealed, we should have a clearer picture of COVID-19 business interruption coverage.

More Employers Ask Workers to Sign COVID-19 Waivers, but They May Not Be Legal

sign waiver

As lawsuits against employers continue rising amid the coronavirus pandemic, some businesses are requiring workers to sign waivers absolving them of liability and responsibility should they contract the virus.

Eight percent of executives surveyed by law firm Blank Rome said they would require that their workers sign waivers of liability before returning to the workplace.

While employers are trying to protect themselves from a liability that didn’t even exist a year ago, some human resources legal experts have expressed concerns that they may not be necessary ― and may be unenforceable.

The moves come as employers are wrestling with numerous risks that the pandemic has wrought, and with the U.S. Senate having proposed legislation that would limit the liability of employers for workers who become sick during the pandemic. A number of states have also enacted laws or emergency regulations that make it harder for employees to sue employers for negligence over COVID-19.

COVID-19-spurred employee lawsuits have mostly centered on employers not providing the proper protections for workers, discrimination or for being laid off for refusing to come to work.

Legal experts caution that employers cannot require workers to waive rights they may have, such as access to workers’ compensation benefits or the right to file a complaint with OSHA.

They also say that some employers may consider waivers as a green light to not take precautions against COVID-19, but in such cases the waivers would likely not be legal.

If a worker claims they caught COVID-19 at work and the facts back that up, they would likely have access to workers’ compensation benefits (some states even require it). But if the employer was negligent, the employee could have further legal avenues to pursue besides workers’ compensation, rights that cannot legally be waived, lawyers say.

So even if an employee were to sign a document waiving their right to file a complaint if they feel their employer is being negligent, they may still have recourse.

Requiring workers to sign waivers could present a number of legal issues, according to the law website <i>nolo.com</i>, including:

  • Courts in some states are reluctant to enforce liability waivers in the workplace because of the superior bargaining power of employers over their staff.
  • Workplace morale could suffer if your employees think you are placing your own economic interests above workplace safety.
  • Any waiver employees sign would not protect your firm from lawsuits filed by their families should they contract COVID-19 if staff are infected at work.
  • A waiver might be unnecessary in states that have passed laws granting immunity to employers for claims made by workers infected with the virus.

Another option

While employees who refuse to sign a waiver of their company’s liability may have grounds to challenge their employer, some liability lawyers say that employers instead of a waiver can ask their staff to sign a social contract that requires:

  • The employer to follow Centers for Disease Control and Prevention guidelines and take all necessary precautions to prevent the spread of COVID-19 at work, and
  • The workers to comply with their employer’s requirements on mandates on wearing masks, social distancing and not coming to work if they have symptoms or of they think they have been exposed to someone with COVID-19.

This type of agreement won’t protect an employer from a lawsuit, but it does spell out that they are following authorities’ recommendation for protecting employees.

While employees who refuse to sign a waiver of their company’s liability could have grounds to sue, those who sign this type of acknowledgement of new workplace rules and government guidance are less likely to be successful if they are fired for not signing. This is because the acknowledgement is not forcing them to give up any of their rights and is rather for their and their co-workers’ protection.

These social contracts also would provide workers with a list of their responsibilities when working during the COVID-19 pandemic, and outline what their employer is doing to protect them.

Raft of Bills Would Add New COVID-19 Rules for Employers

workplace safety

The California Legislature is working on a number of new measures to protect workers in the state during the COVID-19 pandemic.

The measures take aim at “holes” in the system that may leave employees who contract the coronavirus on the job without workers’ compensation benefits, footing higher utility bills because of working at home and needing sick leave time available to them should they contract the disease.

Gov. Gavin Newsom said he would work closely with legislators to help the measures become law.

Below we look at the legislative moves that have gained the most traction and are supported by the governor.

Workers’ compensation

There are two bills (one in the Assembly and the other in the State Senate) that would make it easier for employees to be paid workers’ compensation if they contract COVID-19 (presumably on the job).

Assemblywoman Lorena Gonzalez (D-San Diego) has introduced AB 196, which would create a presumption that essential workers who contract COVID-19 were infected while on the job and that the employer would not be able to contest the claim.

Meanwhile, Sen. Jerry Hill (D-San Mateo) has introduced SB 1159, which would require workers’ compensation coverage for COVID-19-related illness or death for employees who contract the virus. The infected employee would not have to prove they had contracted the coronavirus on the job, and would require the employer, if contesting the claim, to prove that it hadn’t been.

The law essentially codifies an executive order made by Newsom in May, but it does not cover new worker claims made on or after July 5.

Both bills are a work in progress and may eventually be merged into one. Hill is talking to labor and business groups about his measure, and which industries would be covered and whether the provisions would be retroactive.

Job-protected leave

Assemblyman Ash Kalra (D-San Jose) has introduced AB 3216, which would prohibit employers from refusing a request for up to 12 weeks of job-protected leave so that a worker can care for a child whose school has been forced to close due to a health emergency declared by a local, state or federal authority.

Easing meal and rest break rules

AB 1492 would allow employees more flexibility in when they can take meal and rest breaks when working from home. The measure by Assemblywoman Tasha Boerner Horvath (D-Encinitas) would also require employers to pay staff who skip those breaks for an extra hour of work.

Employers would also be required to pay for additional equipment and a portion of the workers’ internet and utility bills when working from home. This is because it has been reported that many people who have been forced to work from home are seeing higher usage bills.

Reporting workplace outbreaks

AB 685, authored by Eloise Reyes (D-Colton), would require employers to notify their employees, the Division of Occupational Safety and Health, and the State Department of Public Health of any employee exposure to COVID-19. The notification must be made within 24 hours of when “the employer knew of or should have reasonably have known of the workplace outbreak.”

If the employer fails to notify or notify within 24 hours, they can be subjected to a misdemeanor infraction carrying a $10,000 fine.