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January 2021
Welcome and Happy New Year to readers of Making the Connection!   
In this issue, you will find: 
  • In Focus : Navigating Through Disruption
  • Question of the Month, discussing vaccine mandates in the workplace
  • Case on Point, focusing on sole remedy clauses
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
Navigating Through Disruption
Like many people, I welcome the arrival of COVID-19 vaccines and the hope of an eventual turn to normalcy, including visits with family, dining in restaurants, attending cultural events, and travelling. At the same time, COVID-19 has disrupted the way we work, shop, educate our children, deliver healthcare and resolve our disputes, and we don't know yet what the new normal will look like, especially in these sectors.
For many, this disruption has resulted in personal unemployment or business difficulties or failures.  But disruption also brings opportunities, although navigating through disruption to find them can be challenging. To enjoy future success, we need to recognize and embrace these changes.
In my own career, I have pivoted several times, sometimes by choice, and sometimes by necessity. For those in this situation, I offer several suggestions:
  • Identify new or emerging needs and demands prompted by changing circumstances;
  • Consider how your prior training and experience can be redeployed in new settings;
  • Also consider whether you need new training or skills to make those transitions;
  • Sow a few seeds, you never know what will sprout;
  • Don't sow too many, or you won't be able to cultivate them properly; and
  • Seek out the guidance and support of people who can assist you.
As someone who has experienced such disruption in the past, and benefitted from the kindness and generosity of friends and strangers, please let me know if I can be helpful to you in navigating through disruption. 
Question of the Month
This month's question:
Q: Can employers require employees to be vaccinated against Covid-19?

A: Yes, in most cases.  The Occupational Safety and Health Administration which requires that employers provide a safe workplace has approved mandatory vaccinations by employers. The Equal Employment Opportunity Commission has recognized that the presence in the workplace of a covid-positive person is a direct threat to workplace health and safety. Thus,  employers are permitted to require testing for covid and mandate vaccinations.  The only exceptions are where there is a firmly held religious objection to vaccinations or medical reason why an individual cannot be vaccinated.  In such circumstances, employers are encouraged to accommodate the employee, such as by permitting working remotely, but are not required to offer such accommodations if they are unduly burdensome. Landlords, restaurants, airlines, and other places of business are also likely to impose testing and vaccine requirements on anyone entering their premises in order to meet their legal duties to protect the safety and health of visitors and customers.
Case On Point
In this month's case, the court considers the enforceability of an exculpatory clause.
In the Matter of Part 60 Put-Back Litigation
(N.Y. Ct. of App. 2020)
As a general matter, our legal system permits freedom of contract, except where a specific kind of provision violates public policy or is otherwise unconscionable.  Such exceptions often occur in circumstances, such as the employer-employee relationship or the business-consumer setting, where there is unequal bargaining power. More problematic is whether such constraints should be imposed where there is a level playing field.

For example, last month's issue of Making the Connection! featured a case in which the New York Court of Appeals, New York's highest court, refused to enforce a liquidated damages clause as overly punitive.  In this month's case, the Court of Appeals considered the related question of the enforceability of a remedies clause that might be viewed as too lenient. Plaintiff alleged misrepresentations in the sale of the securitized loans.  The contract specified as a "sole remedy" for any breach of the applicable representations, that the seller would cure the defect or repurchase the loan at an agreed upon price.  Plaintiff contended that this limitation on available remedies should not be applicable in cases of gross negligence, and that compensatory, consequential and punitive damages should also be recoverable. The Court, observing that the contract was "negotiated at arm's length by sophisticated parties" held that "the public policy rule prohibiting parties from immunizing themselves from liability for grossly negligent conduct applies only to exculpatory or nominal damages clauses, and the sole remedy provision is neither."

At the Podium
This is a listing of speaking engagements, workshops, events and other public appearances.  At the Podium events are listed on the calendar page of my website. A listing of available presentations and workshops is also posted.   To book me as a speaker or facilitator at your next company, client or association function, contact me at lisa@lisapom.com.    
  • For those seeking employment or work, you might find my webinar on Leveraging the Gig Economy helpful.  Click here to access.

  • I will be teaching Employment Law this semester at Touro Law School. 

Client Corner
Client Corner features client announcements and events of potential interest to readers.  Some Client Corner events are also listed on the calendar page of my website.    

  • Congratulations to Theresa Jacobellis whose firm, Precrxptive Communications LLC, was voted best public relations agency by readers of Long Island Business News. Congratulations are also in order on the success of her Healthcare Confidential podcast, which recently featured a terrific episode on strategies to counter the "Infodemic", the widespread dissemination of rumors and misinformation, as we work to overcome COVID-19.

  • Also congratulations to business and leadership coach Dr. Marc Miller on the launch of his new website.

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© 2021, Lisa Renee Pomerantz. All rights reserved.

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