Ten states have passed legislation, or have had their governor sign executive orders, granting businesses immunity from civil liability for COVID-19 related lawsuits.
Iowa, Kansas, Louisiana, Wyoming, Utah, Oklahoma, North Carolina and Mississippi have passed legislation, while governors from Arkansas and Alabama signed executive orders. The Georgia Senate approved a measure and is waiting on the House chamber for consideration. (See map below for more information.)
In addition, the governors of 21 states, including most of the 10 that have passed legislation, sent a letter to Congressional leaders asking that civil liability protections for businesses, schools and health care workers be considered in the next coronavirus protection package. The letter read in part, "Liability protections must be predictable, timely, targeted, and shield employers from legal risk when following the appropriate standard of care to protect employees, customers and students." Some believe that a blanket federal shield would be preferable to a patchwork of state-specific legislation.
The bills signed into law go beyond the immunity that 30 states granted to health care providers and nine states granted to companies making personal protective equipment, or PPE, at the onset of the coronavirus pandemic. They are welcomed by businesses that remained open during the crisis – essential businesses like groceries, transportation, and several others – as well as those now beginning to reopen.
All 10 states said that a business is not liable unless they acted with "wanton, reckless, willful, or intentional misconduct." Arkansas and Louisiana did not extend the immunity to workers’ compensation claims.
Mississippi added language saying "the immunities provided in this act shall not apply where the plaintiff shows, by clear and convincing evidence, that a defendant, or any employee or agent thereof, acted with actual malice or willful, intentional misconduct." This language is similar to what other states are proposing.
Knowing if there is an applicable act in your jurisdiction is just the beginning. Although not exhaustive, here is a list of questions to consider as you begin navigating the re-opening phase of the pandemic:
- Does my local jurisdiction have a liability shield? What protections does it afford my business from potential claimants, such as employees, customers, or others?
- What constitutes a covered party in my jurisdiction? Is the shield limited to healthcare providers and certain businesses, or are other entities and individuals protected as well?
- What types of injury or infection does my jurisdiction cover? Is it any mutation of COVID-19 or is the application of the law much narrower?
- Are there carve-outs for gross negligence and willful misconduct? What is the minimum standard by which I have to operate my business to avoid liability?
- Does my jurisdiction have a rebuttable presumption? What does it require?
- Are there appropriate warnings and notices that I can post to protect my business from a lawsuit? What should they say, and in what form should I provide them to my employees and customers?
- If my state does not have a liability shield, what additional information do I need to know and what steps should I take to protect my business from a lawsuit?
* Source: The National Law Review, July 20, 2020.