March 2021

Sponsored by:

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President's Letter
By: Bryan Chance

Dear NRRDA Members - It is hard to believe that most of us have been living under life-altering COVID restrictions for nearly a year....

Under normal circumstances this time of year, I would be writing to celebrate the success of our latest Annual Conference and remembering the great fellowship and camaraderie we enjoyed. Unfortunately, COVID affected all of us and we had no choice but to skip the Annual Conference this year. We are encouraged by the rapid drop in positive cases and hospitalizations around the country. While not perfect, the vaccine rollout has certainly reduced cases and gives us all hope that we will see the end of the most stringent restrictions by the end of the year.

With all of this in mind, the NRRDA Board and committees have been hard at work to continue our mission to support our Industry members in the retail and restaurant industries and lift each other up for support during the pandemic. We have made several decisions, which we will roll out over the course of 2021, and I am pleased to announce them now.

Annual Conference
The Annual Conference Committee assembled a great program for the May 2021 Conference. While restrictions are improving in certain areas around the country, we decided to postpone the Annual Conference in San Antonio until March 2-4, 2022. However, we will make the material from each session available live - virtually for all members who need CLE’s. While we cannot get together yet, we wanted to bring our leading-edge content to you in a way that is most useful and beneficial. We will present a different topic each month thorough our online platform and allow members to register and attend online at no cost. We will announce each session in advance and give
members ample time to register. We greatly appreciate all of the speakers’ time and willingness to present their material online and look forward to seeing many of you with us during those sessions.

Board and Committee Composition
Postponing the Conference was a difficult decision, but made the most sense for all members, especially those of us who may not be able or willing to travel. Without the Annual Conference, we are not able to hold our members-only meeting where we vote for Board members and install new officers. The Board unanimously approved a change in NRRDA’s by-laws, which allows us to extend Board members’ and officers’ terms any time the members-only meeting cannot be held. Therefore, our current Board and officers will remain in place until our Annual Conference in 2022. Committee composition will also remain unchanged, however if you are interested in joining or changing committees please let the NRRDA office know at info@nrrda.org, and we’ll help you join in whatever capacity you’d like to serve. NRRDA’s strength resides in our members and volunteers and we appreciate all you do to help support our mission.

Lighthouse Conference
While we will not be able to meet in person in May, we fully expect to be able to host smaller in-person meetings during the fourth quarter this year. Our Lighthouse Committee is already working on conferences that will take place in October. We have yet to schedule a specific date, but we will be hosting the conference on both coasts on the same day. We expect the meetings will take place in Atlanta and Southern California virtually connected with members and speakers attending in person at both locations. The Lighthouse conference is generally smaller, which enables us to host up to 100 people in a way that complies with whatever social distancing requirements will be in place at the time. We will be addressing the emerging legal issues technology brings and that our Industry members confront every day. While the program is still under development, we are very excited to be planning in-person conferences on both coasts and create an opportunity for us to meet in person in the safest way possible.
We will announce dates and locations in the near future so please be on the lookout for invitations to register and save the date!

Industry Only Calls
Last year we recognized the need for our Industry members to learn from and work together to address the never ending issues presented by COVID. At times, we had more than 30 members on monthly calls in order to collaborate and guide their organizations through the pandemic. We hosted 17 calls last year and will continue hosting them regularly year, with our next one planned for late April. Our first call for 2021 year took place in Mid-February and was attended by 16 members. We are off to a great start and look forward to continuing to provide a platform that enables Industry members to work together.

2020 is a year that many of us would like to forget. We are hopeful that by the end of this year, 2020 is a distant memory and we can reclaim whatever the new normal looks like. On behalf of the NRRDA Board, I would like to thank you all for your continued support and participation in NRRDA. We are nothing without active and engaged members and look forward to seeing you all after what has already been too long of a break.
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Stay well and cheers to a great new year!

Brian Chance, NRRDA President 

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Mandating COVID-19 Vaccines--Balancing the Risks and Benefits 
By: Anandhi S. Rajan, Esq., and Crystal S. McElrath, Esq., Swift, Currie, McGhee & Hiers, LLP

As government stay-at-home orders continue to be modified and COVID-19 vaccines become available, employers who are in the re-opening process are asking: 1) Can I require all my employees to receive the COVID-19 vaccine and 2) Should I require all employees to receive the COVID-19 vaccine?.... 

For employers leaning in the direction of requiring vaccinations for their employees, they would be well advised to consider the Equal Employment Opportunity Commission’s (EEOC) guidance on the topic, taking into account the requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act and the regulations issued by the Occupational Safety and Health Administration (OSHA). The guidance, statutes and regulations would suggest the answer to the query would be, “Yes, employers may mandate that employees receive COVID-19 vaccines, but . . . .” This article will explore the challenges.

Exceptions to Requiring the COVID-19 Vaccine

Health Conditions
Employers may require the COVID-19 vaccines as long as appropriate exceptions are made for individuals who have a health condition prohibiting them from receiving the vaccine. If an employee provides the appropriate documentation from a medical provider indicating (s)he should not receive the COVID-19 vaccine, the employer should proceed with the interactive process required by the ADA to find a reasonable accommodation that allows the employee to continue performing the essential functions of their job without the COVID-19 vaccine. Reasonable accommodations may include less face-to-face interaction with other individuals, use of PPE, or teleworking, if feasible for the position.

Sincerely Held Religious Beliefs
A second exception is the religious exemption, which is recognized by Title VII and includes individuals with sincerely held religious beliefs that prohibit vaccinations. Title VII instructs employers to offer reasonable accommodations in such a case, and employers must do so with relatively little interrogation as to whether an employee’s belief system is a religious belief. While an employer may make a reasonable inquiry into the sincerity of an employee’s belief or
practice (including a request for supporting information from those who are aware of the employee’s religious beliefs or practices), courts consistently give great deference to an individual’s religious beliefs. An employer should ordinarily assume that an employee’s request for religious accommodation is indeed based upon sincerely held religious beliefs.

Union Collective Bargaining Agreements
The third exception is for union employees who have entered into a collective bargaining agreement that prohibits mandatory vaccinations. If you have union employees, double check whether the collective bargaining agreement addresses this before requiring the vaccine. Barring these three exceptions, an employer can mandate COVID-19 vaccines. However, the more prudent question may be — just because an employer can, should it? The answer to that question may be less clear, but there are some issues to consider.

Considerations When Requiring the COVID-19 Vaccine
OSHA General Duty Clause
The obvious advantages of mandating the vaccine are limiting the spread of COVID-19 in the employer’s workforce, as well as in the community and/or to customers/clients. Further, as employers have a legal obligation to provide a safe workplace for employees, OSHA’s General Duty clause comes into play as the specific statute requires employers to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm. Interestingly, OSHA has stated, under its General Duty clause, employers should not interfere with an employee’s right to refuse vaccination based on a reasonable belief that their medical condition might create a real danger of serious illness or death (such as an adverse reaction to the vaccine). Employers may require medical documentation in support of any exemption request based upon a medical condition.

Limiting the Spread and Business Liability
Employers concerned about limiting the spread of COVID-19 among their customers and community are correct to weigh such considerations. Certainly, everyone — including employers — must do their part to slow the spread of this disease. Practically speaking, contact tracing that may be utilized to contain the spread of COVID-19 requires valuable time and resources during a period when most employers are trying to sustain their business model with fewer employees. While there is currently no federal legislation to protect a business from liability claims caused by the spread of COVID-19, many states (Alabama, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio,
Oklahoma, Tennessee, Utah and Wyoming) have enacted legislation providing businesses immunity from legal liability for claims related to COVID-19 exposure. However, the extent to which those statutes hold up to legal challenges is to be seen. As an example, if a statute provides that a customer assumes the risk of possibly contracting COVID-19 by entering a business’s premises, would the same assumption of risk apply to a family member who then contracts COVID-19 from the customer who entered the business’s premises?

Workplace Morale
Mandatory COVID-19 vaccines may also pose morale issues for an employer’s workforce. Even for those individuals who do not have a legally recognized exception they can rely on to avoid taking the vaccine, there may be hesitation regarding the vaccine for other issues of mistrust of government authorities and science. Employers will have to weigh the potential impact of mandating vaccines on the morale of their workforce and whether such a mandate would encourage their employees to return to the work site or cause them to seek alternative employers who may accommodate their concerns and fears.

Workers’ Compensation Liability
In addition, there is the issue of workers’ compensation liability. Would mandatory COVID-19 vaccines curtail workers’ compensation liability? That depends on state laws regarding the compensability of COVID-19 injury or death cases. Some states have enacted legislation making COVID-19 a compensable work injury; thus, vaccines may be more helpful to employers in those states to curtail their liability. Regardless of whether being infected with COVID-19 is considered a compensable work injury in your state, employers should also consider whether injuries arising from the vaccine administration itself might be compensable. For instance, in a Georgia case, an employee was found to have sustained a compensable work injury (specifically a tendon tear) to her shoulder as the result of a mandatory flu vaccine. Adverse reactions to the vaccine itself must also go through states’ workers’ compensation systems, if the vaccine was administered as part of a mandatory vaccine program by the employer. If there is no workers’ compensation coverage, the federal Countermeasure Injury Compensation Program (CICP) may reimburse the costs of medical expenses and lost income caused by vaccine injury, only as a payer of last resort. While there has been a push to have the federal government open up the long-established Vaccine Injury Compensation Program (VICP) for claims of injury related to COVID-19 vaccinations, for now, anyone with a claim of COVID-19 vaccine injury or reaction must go through the CICP.

Vaccine Administration and ADA Compliance
The administration of a mandatory COVID-19 vaccine raises many other considerations under the ADA, which cannot be fully unpacked in this article. Employers who require the vaccine must consider whether the vaccine will be administered by the employer (for instance by an in- house nurse) or by a third party. If the employer administers the vaccine, the employer must ensure that any pre-vaccine screening questions comply with ADA’s guidelines regarding what information an employer may solicit from employees as the ADA requires employers’ medical inquiries be job related and consistent with business necessity.

Providing Incentives
In lieu of requiring COVID-19 vaccines, some employers may choose to provide incentives for employees who receive the vaccine from a third-party provider. In order to avoid allegations of discrimination against employees with a medical or religious exemption, employers might consider alternative ways for all employees to receive the same incentive. Incentives like paid time off for employees who get the vaccine during work hours and/or paid time off for employees who experience side effects (like fatigue) in the days after the vaccine might be low- risk incentives. Employees who do not receive the vaccine are not losing time from work and therefore would not be missing out on the incentive. However, paid sick leave for COVID-19 symptoms should not be conditioned upon receipt of the vaccine. Legislation proposed by the EEOC regarding wellness-related incentives may be forthcoming and may provide additional guidance in the coming months.

As with most legal issues, there is no one-size-fits-all solution to the issue of employers mandating COVID-19 vaccines and the pitfalls posed by taking such a position. Therefore, it would be prudent for each employer to consult with legal counsel regarding its proposed COVID-19 vaccine policies to understand the risks and benefits posed by their position on the issue, as the law continues to evolve at the local, state and federal level.

Anandhi Rajan is a partner at Swift, Currie, McGhee & Hiers, LLP. She represents management in employment matters and counsels businesses and individuals in matters of potential liability arising from their business operations or actions. She can be reached at anandhi.rajan@swiftcurrie.com.
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Crystal McElrath is a partner at Swift, Currie, McGhee & Hiers, LLP. She practices workers’ compensation defense, as well as employment law defense and counseling, specializing in disability and leave laws. She can be reached at crystal.mcelrath@swiftcurrie.com. 

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Extent of Landlord Duty to Protect Tenants Again Criminal Acts of Third-Parties
By: Andrew T. Stephenson and Colin Grigg, Franklin & Prokpik

A common issue that arises in the context of landlord-tenant relationships is the extent to which a landlord owes a duty to protect tenants and invitees against the criminal acts of third parties....

Recently, in Davis v. Regency Lane, LLC, No. 1747, Sept. Term 2019 (Md. Ct. Spec. App. Jan. 28, 2021), the Court of Special Appeals revisited this issue in a reported opinion. The Davis case involved a wrongful death action against an apartment building owner, Regency Lane, LLC, brought by the estates of two teenagers who were shot and killed by an unknown assailant outside an apartment building in the parking lot. Plaintiffs alleged that Regency negligently failed to exercise reasonable care in providing adequate security measures on the premises to protect the tenants and invitees from foreseeable criminal activity. Through the course of discovery, Plaintiffs failed to provide any evidence regarding the circumstances of the shooting. The Circuit Court for Prince George’s County granted Regency’s motion for summary judgment, finding that Plaintiffs had failed to identify a dangerous physical condition that existed, that the shooting was a result of that condition, or that past criminal activities alerted Regency to the foreseeability of the deadly shootings. The Plaintiffs appealed.

In its discussion, the Davis court provided a summary of the duty owed. Generally, a landlord has no special duty to protect tenants against crimes perpetrated by third parties on the premises. The landlord does have a duty, however, to exercise reasonable care, under the circumstances, in areas within the landlord’s control, such as common areas. If the landlord knows, or should know, of criminal activity against persons or property in the common areas, he has a duty to take reasonable measures, in view of the existing circumstances, to eliminate the conditions contributing to the criminal activity. The duty in that situation is to provide reasonable security measures to eliminate foreseeable harm.
For a landlord to have a duty to provide reasonable security measures, two things must be shown. First, a landlord must have the knowledge or should have knowledge based on the circumstances, that criminal activity on the premises has created a dangerous condition. Once a landlord has the requisite knowledge, the landlord must take reasonable measures to eliminate the condition contributing to the criminal activity. Second, the particular harm must be foreseeable, i.e., a landlord of ordinary intelligence, based on the nature or past criminal activity, should have foreseen the harm suffered. If the harm is not the type that would be associated with the known criminal activity on the premises, there is no duty to take measures to eliminate that harm.

The court found that there were sufficient facts in the record to support the finding that Regency had knowledge of criminal activity, and that the shootings were a foreseeable harm of that criminal activity. Therefore, Regency owed a duty to the decedents to take reasonable security measures to eliminate that harm. The court noted, however, that the appellants had not shown that a dangerous condition contributed to the shooting. The court held that “where appellants produced no evidence regarding the circumstances of the shooting, appellants could not meet their burden to show that any failure by Regency to satisfy its duty to take reasonable security measures was the proximate cause of the shooting.” The court explained that where the breach of duty is the failure of a landlord to provide security measures against known criminal activity, proximate cause will be found if “the breach enhanced the likelihood of the particular activity.”
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In its analysis, the court acknowledged that proximate cause ordinarily is a question of fact. However, the court explained that when plaintiffs fail to meet their burden of showing a viable theory of causation in a negligence case, summary judgment is proper. The court again emphasized that appellants produced no evidence regarding the circumstances of the shooting, how it occurred, or what precipitated it. As such, there was no evidence to support a finding that extra security measures could have prevented the shooting. The court explained that proof of causation could not be based on mere speculation. Based on this lack of evidence, the court determined that appellants failed to show that inadequate security measures caused the decedents’ deaths. Accordingly, there was no triable issue of material fact to present to a jury on the issue of proximate cause. Therefore the circuit court properly granted summary judgment in favor of Regency. 

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The Perils of Failing to Follow Your Own Rules
By: Floyd G. Cottrell, Cottrell Solensky, P.A.

The owners and operators of premises have a duty to use reasonable care for the safety of those on the premises for business purposes (i.e. the business "invitees").....

As summarized by the often-cited Restatement (Second) of Torts §343 (1965), the duty is breached if the owner/operator:

a) Knows or by the exercise of reasonable care would discover a condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
c) Fails to exercise reasonable care to protect them against the danger.

Many stores and restaurants have developed internal practices and procedures to promote the discovery and remediation of commonly-recurring perils such as trip hazards, product breakage, spills, etc. Although these “private” measures do not substitute for the common law standard of reasonable care as embodied in the Restatement, deviations from internal policies adversely affect the defense of lawsuits arising from dangers the policies were intended to prevent.

In Holly v. Real Estate Business Trust, 262 F. Supp. 3d 532 (N.D. Oh. 2017), the defendant store had a procedure requiring the area of a spill to be blocked off and guarded by an employee to prevent a customer or fellow employee from coming into contact with the spill or tracking it elsewhere before it could be cleaned. Holly involved spilled blueberries. Contrary to store policy, the spill area was not blocked, and plaintiff slipped after (according to the involved employee) she “found the only one I had not swept up yet”. Id. at 535.

In denying a defense motion for summary judgment, the Ohio court recognized that “a defendant’s own procedures and policies do not ipso facto create the standard of care and, relatedly, that a defendant’s failure to comply with its own procedures and policies does not, standing alone, establish breach”. Id. at 536-537. However, “That a defendant’s own practice and policies do not establish the standard of care does not preclude a jury from considering those procedures and policies, as well as defendant’s failure to adhere to them”. Id. at 537.

The Courts are generally willing to admit evidence of policies that codify common sense. In Schmeelk v. King Kullen Grocery Co, Inc., 2012 N.Y. Misc. LEXIS 6194 (Suffolk Cty 2012), summary judgment was denied when plaintiff was struck by a “U-boat” stacked over six-feet high with merchandise being pushed by an employee, in contravention of store rule requiring that such conveyances been pulled rather than pushed. The Court made clear, however, that defendant’s “...negligence is not predicated on the violation of its internal guidelines or its policies but upon the recognition of the reasonable standard of care. Williams was pushing U- boat stacked high with merchandise during business hours with customers present in the store, and was unable to see where he was going and ran over Schmeelk. This is unreasonable behavior”.

On the other hand are policies and procedures that may not be solely concerned with safety or if violated may not cause or contribute to an obvious hazard. In Hudson v. Wal-Mart Stores, East, L.P., 2007 U.S. Dist. LEXIS 52671 (W.D. Va.), plaintiff (who suffered from arthritis) used a store- supplied electric motor cart to bring her groceries to her car. The store had a policy against taking the motor carts into the parking lot. Plaintiff was returning the cart and driving up an inclined ramp when the cart lost power, rolled backwards, and toppled when it reached the curb. In granting summary judgment, the Court held that, “violation of company policy does not show a breach in the standard of care.” Although the opinion did not dissect the underlying reasons for the policy, it is conceivably intended for purposes other than safety such as to minimize damage to the carts in the parking lot and having them available in the store for other customers.

A related issue is whether breach of a practice or protocol mandating regular inspections – sometimes referred to as “safety sweeps” – can substitute for notice of a dangerous condition. The argument frequently presented is that if a premise-wide inspection is required at a given interval – e.g., every hour – plaintiff’s obligation to show actual or constructive notice is obviated. Fortunately, most Courts reject this argument, holding that periodic inspections often exceed the requirements of “reasonable care.” See e.g., Greene v. Wal-Mart Stores East, L.P., 2018 U.S. Dist. LEXIS 132111 (E.D. Pa.) “A self-imposed policy is not the same as a legal duty” and “to require a retail store to inspect its premises almost constantly would be unreasonable....;” Hower v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 51557 (E.D. Pa.) (Defendant’s policies are not the equivalent of its duty of care. For a variety of reasons, a storeowner like Defendant may adopt safety policies that exceed the duty of acre and provide greater protection to invitees. A store owner like Defendant should not be faced with a lawsuit for negligence by failing to live up to a heightened, self-imposed duty of care”.); Hudson v. Wal- Mart Stores East, L.P., 2007 U.S. Dist. LEXIS 52671 (W.D. Va.).
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Breach of a company’s policies can undeniably place the defense in a bad position. If supported by the facts, the defense must be prepared to argue that the policies are not related to safety or establish a standard of “more-than-reasonable care,” hold defendant to a higher standard than required by the law, and must be precluded. Look for language in written policies, procedures and guidelines that may overtly exalt the standards the company set. Try to obtain concessions that the policy at issue is not widely adopted by competitors, and determine from defense experts the industry standard. Failing to attain the lofty goal of preclusion, the best that can be done may be to limit the damage and prevent a plaintiff from benefitting more than entitled, by resisting elevating the policy as the standard of care in a jury charge or for substituting for an element of plaintiff’s case such as notice that plaintiff must still prove. 

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2021 Annual Sponsorships
NRRDA is offering special annual sponsorship options in 2021. We invite you to sponsor and join an elite group of long-time supporters such as SEA, Rimkus, Goodman McGuffey, KPM Law, American Legal, Swift Currie, Veritext, JS Held, Gallagher Bassett and more.

Click here for the full sponsorship program.