NEW MEXICO’S BUSINESS LAWYERS ®

Returning to the Office: Answers to Legal Questions in a Post-COVID Environment

May 16, 2021

What reasonable legal liabilities does an employer have due to COVID?

• So far, businesses being sued in general allegedly have failed to follow established health and safety protocols.

• Remain vigilant in policies and procedures as employees return. Mask mandates, temperature readings every time the employee or guest enters the workplace, contact tracing, social distancing, and standardized cleaning protocols go a long way to a good defense.

Can an employer require employees to become vaccinated?

• Yes, with two important exceptions: serious medical conditions or religious reasons.

• The employer can require vaccination if it can show likely endangerment to others in the workplace. This is a very high standard, and mostly has applied to hospitals and the like.

• Incentivizing employees is a better strategy. Communication is key for vaccine-hesitant employees. Determine the reason for concern; it may be a scenario for an accommodation.

What liability does the employer have if there is a COVID case in the workplace?

• Employers have no legal immunity in this situation. However, the employee or visitor who sues must prove the employer caused the infection. The best defense is to continue the safety protocols put in place. What is the current position on vaccine passports?

• A U.S. Supreme Court case from 1905 appears to have set the precedent to allow government to take extreme measures to protect its citizens. Modern observers, however, caution our current Supreme Court will look at the issue differently, so it remains a grey area. Does a business have the right to require masks after the Public Health Order?

• Yes. Even once the Order is no longer in effect, a business can mandate masks in its establishment.

• The CDC will continue to recommend mask-wearing, at least for the near-term. By acting prudently in this regard, a business is taking measures to limit potential liability. What other issues are under review as we emerge from lockdown?

• The implications for working remotely, especially for hourly employees, are critical. Every time an hourly wage-earner checks an email, for instance, that employee must be paid. Employers risk being out of compliance with federal law if they do not closely monitor these activities.

• Some employees may request accommodation to work from home. Employers may not be able to make these accommodations in every case but should remain consistent across all employees.

• During the lockdown, many regulations were relaxed, i.e. taking temperatures in the workplace. This would have raised privacy issues pre-pandemic, but now is an acceptable protocol. As we return to normal, businesses and their legal counsel must stay on top of changes to ensure they remain in compliance.

For more information on legal or employment issues, call Ben Thomas, CEO, at 505-883-3385.

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