As governmental authorities continue easing the lockdown restrictions that we have all been living with over the course of the next few weeks and months, it is important to recognize that the Covid-19 pandemic is far from over. While the worst of the pandemic is hopefully behind us, the virus continues to circulate and continues to infect people, including drivers, customers and employees. Accordingly, it is important that everyone continue to remain vigilant, and continue to take the precautions that have brought us to this point, including practicing social distancing, regularly washing our hands and wearing face coverings. Letting our guard down now can have disastrous implications not only for the health and safety of customers, drivers and employees, doing so carries with it the potential of inviting legal claims.
Cruise lines, for example, have been hit with several class action lawsuits relating to deadly COVID-19 outbreaks aboard their ships. Obviously, a brief car ride with one or two passengers and a driver hardly compares to a week’s long voyage on a cruise ship with thousands of other passengers. Nevertheless, it is possible that someone who eventually comes down with COVID-19 may claim that he or she was infected riding in a vehicle operated by one of your affiliated drivers. As is discussed below, the risk of such claims may be minimized by ensuring drivers adhere to appropriate cleaning and safety protocols, and also by conveying to your customers that they have an obligation to take necessary precautions while out and about.
Along with the risk of customer claims, there is also the risk of employee claims related to this pandemic. Transportation companies are essential services and most have been operating uninterrupted during the crisis, however that’s not to say that you should be operating “business as usual” at your base. Employees are entitled by law to a safe and healthy work environment, and failure to take steps to minimize the potential risk of exposure to COVID-19 is a recipe for disaster. Employee claims or OSHA complaints would be the least of your worries. Think about it: In the event of a full-fledged outbreak in your office affecting your entire staff, who would run your business?
While there is no guaranteed fool-proof way to avoid COVID-19 infections and/or claims resulting from such infections, there are things that can be done to minimize the chance of same occurring. Here are some recommendation from the Centers for Disease Control, other governmental authorities, and my office.
Communicate With Your Customers Regarding COVID-19 Safety
As more and more people return to work, for-hire transportation usage will hopefully rebound, if not increase in the coming weeks. We recommend that you communicate directly with your customers, and advise them not only of the steps being taken to maximize their safety (such as increased cleaning protocols), but also that they need to take responsibility for their own safety and that of their driver and others while traveling. This includes:
- Mask usage while traveling (this is required by executive order of Governor Cuomo)
- Sitting as far apart from others in the vehicle while traveling to the extent practical (or booking larger vehicles if traveling with others)
- Practicing “respiratory etiquette” by covering coughs and sneezes (we suggest supplying a box of tissues on the back seat for this purpose, as well as hand sanitizer)
- Opening windows to facilitate the exchange of air
- Avoiding unnecessarily touching vehicle surfaces
Passengers should be placed on notice that they are responsible for the risks associated with traveling with others, and if you are imposing a surcharge of any type to cover the cost of partitions, cleaning supplies, masks and other expenses (as many in the industry are), passengers should be informed of that surcharge and what it is for before they incur charges.
Notice of the foregoing should at a minimum be provided via a letter to the account, and we further recommend that consideration be given to either posting same in the vehicle, or by placing single-use disposable copies of the guidelines on seats for passengers to read. We do not recommend the use of laminated copies – it’s just another thing for drivers to have to clean.
Educate Drivers Regarding COVID-19 Precautions
Drivers are required by law to wear face masks for the duration of the pandemic, and the TLC has also enacted new requirements to protect drivers and the public against infection. This includes the use of vehicle partitions, staying at home if sick, enhanced personal hygiene recommendations and enhanced cleaning protocols. Consideration should also be given to supplying tissues and hand sanitizer to passengers to help cut down the risk of transmission.
In particular, the TLC has recommended that drivers clean and disinfect their vehicle regularly, including (a) paying attention to surfaces and objects that are touched often by passengers, such as door handles, window buttons, locks, payment machines, arm rests, seat cushions, buckles and seatbelts, and (b) wiping down surfaces that the driver frequently touches, such as the steering wheel, radio buttons, turn indicators and cup holders. This should be done with appropriate disinfectant products (e.g. Clorox, peroxide or alcohol-based multi-purpose cleaners), that vehicle doors be kept open while cleaning and disinfecting, and that disposable gloves be worn and thereafter discarded before washing hands with soap and water, or by using an alcohol-based hand sanitizer.
Particularly for those companies whose drivers are independent contractors, it is important to convey in no uncertain terms that the foregoing are TLC guidelines. Telling a driver what he or she must do always carries with it the risk that at some point down the road, what is intended as helpful advice to protect driver and passenger safety may be pointed to in an administrative or other proceeding as evidence of “direction and control” warranting a finding of employment status.
As I mentioned earlier, many transportation companies are imposing surcharges in response to COVID-19. If you are considering doing so, we strongly recommend that any such surcharge be passed along in its entirety to your drivers to assist them with the cost of purchasing masks, gloves, cleaning supplies and partitions. Using part or all of the surcharge to cover base-related costs (or worse, using it to enhance your company’s bottom line) will only pay dividends in driver and customer ill-will when a complaint is aired, and may possibly plant the seed for a future lawsuit.
Ensure a Safe Workplace for Employees
Lastly, given the potential consequences of an outbreak in your offices (and the risk you’ll get blamed if that occurs), it is important that appropriate steps be taken to enhance the safety of your employees. While most employers have already taken many of these steps, there is always room for improvement. Here are our recommendations for COVID-19 safety at your base:
- Clean and disinfecting all surfaces throughout on a regular basis, paying particular attention to frequently-touched surfaces, including workstations, keyboards, telephones, handrails, elevator buttons, printer/copiers, drinking fountains, refrigerators and other appliances, and doorknobs.
- Require employees to adhere to social distancing guidelines.
- Move workstations further apart to increase social distancing, and/or erect barriers where necessary.
- Stagger employee shifts.
- Increase air ventilation, clean air filters and ducts.
- Consider investing in high-efficiency particulate air filters and/or ultraviolet light disinfecting technologies.
- Require employees wear masks on company premises at all times.
- Supply soap, hand sanitizer, tissues, and cleaning products.
- Prohibit employees who exhibit symptoms of illness from working.
- Consider conducting daily temperature checks.
- Consider providing additional paid time off for employees diagnosed as having been infected with COVID-19, or who must care for a family member who has been diagnosed.
- Consider providing free ground transportation for employees who usually commute to the office via means that pose a higher risk of infection, such as the subway or bus.
Kenny and I hope to soon be writing articles about topics other than COVID-19. In the meantime, we hope everyone stays safe and healthy. Like 9/11, and Hurricane Sandy, and the various other crises we have weathered in the past and that are now thankfully in the rear view mirror, we will get through this!
Kenneth R. Tuch, Esq. and Laurence I. Cohen, Esq. are partners with Tuch & Cohen LLP, with offices located at 1025 Old Country Road, Suite 411, Westbury, New York 11590. The firm specializes in commercial and employment litigation, including misclassification, wage and hour, employment practices, franchising and business practice matters and transactional matters. The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.