Missouri employers should note that two bills recently enacted by Gov. Mike Parson that impose new leave obligations on employees, but also provide a liability shield for employers with respect to pandemic claims. A COVID-19 liability bill and the Victim’s Economic Safety and Security Act (VESSA) both came into effect on August 28 and are impacting most employers in Missouri. What do employers need to know to stay in compliance and take advantage of the protections offered by these two laws?
COVID-19 Liability Laws
The COVID-19 Liability Bill includes three provisions to limit COVID-19 liability for businesses in Missouri – but you need to take positive steps to give your organization the protection it creates. Your business can avoid such liability in cases where a guest, vendor, or contractor alleges a claim for:
- Exposure to covid19;
- COVID-19 medical liability, and
- Responsibility for COVID-19 products.
Under the new law, plaintiffs seeking redress for any of these claims must prove “recklessness” or “willful misconduct,” which is a higher standard than the traditional tort claims that businesses typically have. faced. The law defines “recklessness” as a willful act or omission in reckless disregard of both a legal obligation and consequences for others. “Intentional misconduct” is conduct which intentionally achieves an unlawful objective or “in defiance of a known or obvious risk which is so great that it is highly probable that the harm will outweigh the benefit”.
The COVID-19 exposure liability provision – unlike the other two provisions specific to healthcare providers and COVID-19 products – applies to all employers with physical locations in Missouri.
Liability for exposure to COVID-19
Section 517.1005 – which limits liability for exposure to COVID-19 for businesses in Missouri – defines “COVID-19 exposure actions” as civil actions brought by a person (or their representative) who has suffered bodily injury, brought against an individual or an entity carrying on a commercial activity, alleging that actual, feared or potential exposure to COVID-19 has caused the risk of bodily injury occurring in the course of business, services, activities or accommodation. This would apply to actions brought by guests, vendors and contractors of businesses.
The law states that no person or entity will be responsible for an action of exposure to COVID-19, unless the applicant can prove by clear and convincing evidence that the individual or entity has surrendered recklessness or willful misconduct that caused actual exposure to COVID-19 and the exposure caused harm to the claimant. For religious organizations, liability is limited in actions of exposure to COVID-19, unless the complainant can prove willful misconduct.
Significantly, the statue provides that if a Missouri business (or anyone providing a service, activity, accommodation, or product) displays a written warning prominently at the entrance to the business, there is a presumption rebuttable that the applicant assumed the risk of COVID-19 exposure upon entering the premises. The written warning should be substantially similar to the following:
Under Missouri law, any person entering the premises or using the services of the company disclaims all liability against the person or entity for any damages based on the inherent risks associated with an exposure or damage. potential exposure to COVID-19, except in cases of recklessness or willful misconduct. .
Religious organizations are not required to publish the above notice to avoid actions of exposure to COVID-19. Employers should note that this new law does not change the exclusive remedy provisions of Missouri’s workers’ compensation laws. In other words, employers whose employees contract COVID-19 in the course and scope of their employment will not be able to avoid workers’ compensation liability due to the warning sign shown below. above.
Victims Economic Safety and Security Act (VESSA)
Missouri’s Victim’s Economic Safety and Security Act (VESSA) is the new employment law that places unpaid leave and accommodation obligations on employers of victims of domestic and sexual violence. The following questions are common to help employers understand how this new law affects their businesses.
What can VESSA be used for?
The new law provides two main protections: job-protected leave and secure accommodation.
Employees who are victims of domestic or sexual violence and who work for a company covered by VESSA can request employment protected leave for a valid reason for themselves or a family or household member to cope with this violence for the following reasons:
- Seek medical attention for, or recover from, physical or psychological injuries caused by such violence;
- Obtain services from a victim service organization;
- Obtain psychological advice;
- Participating in security planning, temporary or permanent relocation, or taking other measures to increase the security of the employee or the employee’s family or household member; Where
- Seek legal assistance or remedies to ensure health and safety.
The employer must maintain the collective health plan for the duration of the leave and must reinstate an employee in his position following a VESSA leave.
Employers covered by VESSA are required to take reasonable safety measures for employees (or their households or members of their families) who are victims of domestic or sexual violence, unless such measure causes undue hardship to the worker. the employer. VESSA accommodations may include:
- Adjustment of an employment structure, place of work or work requirement, including transfer or reassignment;
- modified schedule;
- a changed phone number or seat assignment;
- installation of a lock or implementation of a security procedure; Where
- assistance in documenting domestic violence that occurs in the workplace or in work-related contexts, in response to actual or threatened domestic violence.
Does VESSA apply to your business?
VESSA coverage is defined by the number of your Missouri employees. Specifically, businesses with 20 or more Missouri employees must comply with VESSA’s three categories of coverage: (1) job protected leave; (2) reasonable security arrangements; (3) no retaliation against employees for exercising their rights under the law.
However, the number of protected leaves varies depending on the size of your business. Companies with 20 to 49 employees in Missouri are required to provide up to one workweek (based on the employee’s standard workweek) of unpaid leave in any 12-month period. Missouri businesses with 50 or more employees are required to provide up to two weeks of unpaid leave in any 12-month period. But for companies also covered by the Family Medical Leave Act (FMLA), VESSA is not in addition to the 12 weeks already available under the FMLA – but VESSA leave can be taken intermittently or on a work schedule. reduced.
Who can use VESSA?
Missouri employees working in a company covered by VESSA are entitled to time off (1) if the employee is a victim of domestic violence or sexual abuse; or (2) one or more members of the employee’s family or household are victims of domestic violence or sexual abuse. There is no seniority requirement within the framework of VESSA.
What can an employer require from employees?
Employees requesting leave under VESSA must provide their employers with at least 48 hours’ notice of their intention to take the leave, unless it is not possible to give notice. Employers may require the employee to provide proof of their need for time off. For security accommodations, employers may require a written statement from the employee certifying that the need for the security accommodations is for purposes permitted under VESSA.
Measures to be taken by the employer for COVID-19 and VESSA liability
You should immediately update your policies and signage to reflect both COVID-19 liability law as well as VESSA.
- Next Steps to Comply with COVID-19 Liability Law
- You must create and post signage as detailed above in order to create the liability shield offered by this law.
- However, just because you may be able to benefit from a new liability shield, you need to remain vigilant about your pandemic-related safety measures for guests, vendors, and contractors.
- Although the COVID-19 liability law does not directly address your obligation to update your internal COVID-19 policies, it is prudent to communicate with employees before posting any signage to ensure that employees understand the purpose and reason for the signage. Most importantly, you should consider informing employees that this new law does not affect an employee’s workers compensation rights.
- Next Steps to VESSA Compliant
- By October 27, 2021 – Post the VESSA Notice for Your Employees, available from Missouri DOL here.
- After October 27, 2021 – Issue the VESSA notice to all new hires at the start of their employment.
- Train your management and human resources professionals on the process and procedures for employees to request and use VESSA.