I own a business, so I might as well have a target on my back that says, “SUE ME.”
It is seriously ridiculous. The lawyer part of me says, “why does anyone own a business?” The entrepreneur part of me says, “screw those guys, they aren’t taking me down!”
But I digress. I was sued. Why? Because I was driving a car when someone broadsided me in an intersection. As the insurance company dawdled on settlement, the woman who hit me learned that I owned a business (through the magic of Google, I presume). She thought she could threaten me and my business insurances and assets.
You see, if you or your employees are driving within the scope of business or employment, then the business can be liable if you cause an accident.
I wasn’t driving anywhere on business nor was I at fault, but those details didn’t seem to matter to her. Fortunately, I own a law firm, so her lawsuit did not last very long.
Still, it made me think about the employer liability rules for employees. Do you have a company car? Or do your employees sometimes go on errands, drive to see clients or take pit stops from lunch or work? Do they go to more than one office?
If so, you have some risk as a business and business owner if they get in an accident. (Uber’s strategy to avoid this is to classify everyone as independent contractors. It won’t work in the end and is not recommended. Uber has a lot of money to spare for legal fees so that they can delay and game the system; but most businesses don’t and this strategy will make things worse for them.)
Here’s a little video outlining some of the things you should consider when it comes to employees driving. Get insurance accordingly. And talk to your lawyer about ways to keep you lawsuit-free.
Say your employee got into a car accident driving home from work. Can you get sued or be held liable for the accident?
Like many questions in law, the answer depends on the facts.
The answer is “yes” if the employee was driving a company vehicle.
The answer is “no” if the employee was driving their own vehicle as part of their daily commute.
The answer is complicated when the employee sometimes uses his or her car for work during business hours.
Or if the employee is not commuting at the time of the accident.
For example, the employee is driving home from a different office or job site than usual.
Or from a side errand run for the employer.
In these scenarios, the employer may get sued, but may win at trial anyway.
That’s Elliot, the office cat. He’s actually not just an office cat, he’s my full time cat; but he hates being alone, so he goes to the office with me, where he promptly annoys everyone by sleeping in their inboxes or walking across their keyboards.
Elliot runs out the office’s front door at least once a day, only to be caught and brought back inside. It’s his thing. He never goes far… at least, he never did until last Thursday, when he ran around the city block. This seemed only marginally annoying at first, until after a couple hours it became obvious that Elliot had stepped in something caustic. He had a severe chemical burn on his paw, which he licked and turned into a severe chemical burn of his tongue and stomach. Elliot spent the weekend at the vet hospital.
On Monday, I tried to leave Elliot safe in his bed. But he complained and so I took him to the office with me. He wanted to go to the office as was his routine, even though he was sick!
Obviously, Elliot is a cat and not my employee, so having him come to the office when he is sick doesn’t impact my business too much. But it made me think about all the reasons why having sick employees in the office is a bad idea, no matter how much they insist on coming in (for whatever reason). So here’s a partial list of why you need to force sick employees to go home until they are better:
1. Contagions: if one employee has a contagious illness, they are contagious when they are early in the sickness, have a fever, are coughing or sneezing, and when they are carrying virus or bacteria on their hands. Those germs get into your air and are circulated around and get onto everyone’s phones, doorknobs and computers. Before you know it, after a few days to two weeks, half your workforce is out with the ebola virus. This grinds productivity to a halt. You get your customers sick or you get sick yourself. Passing around communicable diseases is bad for business.
2. Worker’s Comp Liability: if an employee is drugged up, tired, foggy, uncoordinated, etc., they may be more prone to accidents. Accidents at work equals worker’s compensation claims and lawsuits. Not only will this affect your premiums, but if it is a severe enough injury, it will trigger an automatic OSHA inspection, which almost always results in fines and other consequences when it turns out you aren’t quite as compliant as you expected!
3. Liability to Customers: it doesn’t happen too often, but occasionally I get a call from a client where an employee accidentally (or even on purpose) hurt or offended a customer to the point that the customer is threatening legal action. Here’s an example: a waitress who is lightheaded from a head cold accidentally pours hot coffee on a patron’s lap, severely burning him. That’s exactly the kind of stupid situation that could have been avoided by the employer forcing the sick employee to go home. Most of the time, it’s not worth the risk of keeping a sick employee out interacting with customers.
4. Disability and Leave Law Compliance: if you have an employee who is exhibiting health problems, you might have a trigger for ADA and leave law compliance. Not all sicknesses in the workplace are head colds. If you have any indication, whatsoever, that an employee may be suffering from something, you need to begin documenting the steps you are taking to obtain releases and accommodate disabilities, immediately. The interactive process under the ADA is a long process and is frequently handled improperly by employers. This leads to a lot of lawsuits and wasted money. Do not wait until the employee comes to you; be proactive. This is especially the case if the employee is a poor performer and in danger of being fired; you do not want a wrongful termination lawsuit on your hands!
5. Productivity Disruptions: here’s a basic bottom line point for you. If you have a sick or injured employee, they are half as productive for the same hourly price. Why spend that? This is especially foolish when the employee’s illness is prolonged by coming to work when they could stay home and use up their sick time (which is on the books already) and get back to full steam in half the time. It is also inefficient if extra time is being devoted to managing them, double checking their work, or picking up the slack, all because they are being “dedicated” by coming in while sick.
Here’s my advice. Allowing sick employees to work is penny-wise but pound-foolish. Make them go home!
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Alicia I. Dearn is the founder of Bellatrix PC, a woman-owned law firm with offices in Missouri and California. Bellatrix PC handles lawsuits and business transactions. We advise in business, employment, real estate, intellectual property, civil litigation, and election law.
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