Cotney Newsletter
Protections That a COVID-19 Liability Shield Can Provide
Operating a company, school, or other business interest during the COVID-19 pandemic can be risky. Leaders must make a special effort to follow all precautions to keep their employees and clients safe. Not only do administrators want to keep their community healthy, but they also need to avoid any lawsuits filed by workers or patrons affected by the coronavirus.
But should businesses be held accountable? Many states do not think so, and since the pandemic began, more than a dozen states have adopted COVID-19 liability shields.
State Specifics
These acts of legislation vary from state to state; however, in general, liability shields limit the responsibility that health care facilities, schools, and other businesses have for any property damage or injury linked to COVID-19 exposure.
For example, in September, Gov. Mike DeWine of Ohio signed into law H.B. 606. It states that schools, individuals, businesses, and health care providers cannot be held liable for deaths or injuries related to COVID-19 exposure unless the plaintiff can prove that the company or facility was reckless and committed willful, wanton, or intentional misconduct.
In Georgia, Gov. Brian Kemp signed the COVID-19 Pandemic Business Safety Act, which protects businesses and health care providers but does not cover cases involving willful misconduct or gross negligence.
In October, Gov. Gretchen Whitmer of Michigan signed the COVID-19 Response and Reopening Liability Assurance Act, a liability shield for individuals and entities that comply with COVID-19-related government guidelines.
However, not all states are following suit. In November, Pennsylvania lawmakers passed similar legislation, but Gov. Tom Wolf vetoed the bill. He stated that although he supports liability protections for “emergency and disaster services activities taken by health care practitioners,” the bill offered immunity so broad that it “invites the potential for carelessness and a disregard for public safety.” He stressed that worker protections and immunity protections are equally important.
The Issue in Florida
Currently, more than 60 business groups in Florida have joined forces to encourage state lawmakers to protect schools, companies, health care providers, and others by enacting liability shield legislation related to COVID-19 injury lawsuits.
The alliance—led by the Florida Restaurant and Lodging Association and the Florida Retail Federation, also known as Restore Economic Strength through Employment & Tourism (RESET)—is urging lawmakers to offer a legal safety net for restaurant and tourism, construction, agriculture, and retail industries, as well as education and health care providers. According to RESET, the pandemic has been challenging for a broad range of businesses struggling to survive, and they deserve protection from frivolous lawsuits.
However, the alliance agrees that litigation against health care providers is warranted in cases involving reckless misconduct and gross negligence. For businesses, RESET advises that lawmakers should adopt an intentional misconduct or gross negligence legal standard; require clear and convincing evidence; allow a shortened statute of limitations, and provide complete immunity for essential businesses. Also, RESET asserts that employers who have followed all the accepted health guidelines should be protected from coronavirus-related lawsuits.
According to a report submitted by the coalition, “Florida businesses that are working hard to kick-start the economy, get people back to work, and protect those already working need assurances that they will not face even more financial hardships from opportunistic lawsuits.”
Federal Effort
On a national level, lawmakers continue to debate the details of another COVID-19 relief package, and for many, a liability shield is a critical component.
Business groups and Senate Republicans insist that a new aid bill include a liability shield to protect employers that are following basic federal health safety directives. In general, Democrats have resisted the inclusion of such protection. Their view is that workers are often risking their lives on the job and deserve legal recourse if they fall ill.
The U.S. Chamber of Commerce has offered support for a liability shield provision in the federal aid package. “A liability safe harbor will protect small businesses and non-profits from being ruined by unfair litigation. The threat of a debilitating wave of lawsuits is clear,” U.S. Chamber Executive Vice President Neil Bradley wrote. “Personal injury lawyers are spending large sums of money advertising their services for COVID-19 lawsuits, a reliable barometer on tort litigation trends.”
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.