COVID-19 Liability Shield Laws: Do They Cover Your Organization?

Several states across the U.S. are providing legislative protections for health care providers and some other businesses against COVID-19-related liability claims, in the absence of any federal action on the matter.

The aim of these laws is to prevent a stream of lawsuits regarding COVID-19 related risks – lawsuits, by individuals seeking damages because they (or a loved one) allegedly contracted COVID-19 when on the organization's premises, that could bankrupt a business.

Currently, the following states have enacted some type of COVID-19 liability shield legislation: Alabama, Alaska, Arkansas, Georgia, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Mississippi, New Jersey, New York, North Carolina, Ohio, Oklahoma, Tennessee, Utah, Wisconsin, and Wyoming.

The laws vary from state-to-state, causing multi-state organizations to be subject to more than one. Diane Wagner "Georgia businesses get COVID-19 liability shield" northwestgeorgianews.com (Aug. 05, 2020); Jason Hall "Tennessee House, Senate passes COVID-19 Recovery Act" newschannel9.com (Aug. 12, 2020).

Commentary

It is important for organizations to know that these laws do not provide a blanket Covid-19 liability shield.

In general, the laws do not eliminate the duty to maintain a safe environment for those who interact with the employer’s workplace. Employers may not completely disregard health and safety procedures and avoid liability under the acts.

Under the Georgia COVID-19 Pandemic Business Safety Act, for example, plaintiffs may proceed with their claims when they can show the organization’s “gross negligence, willful misconduct, reckless infliction of harm, or intentional infliction of harm”. Absent gross negligence or willful misconduct, covered organizations are shielded from COVID-19 exposure lawsuits.

Additional requirements of plaintiffs can vary. For example, Tennessee’s law requires claimants to file a “certificate of good faith” that states the plaintiff’s counsel consulted with a licensed physician who provided a signed written statement that the COVID-19-related injury was caused by the alleged conduct of the employer.

The Georgia Act does not require such a certificate. It, however, provides for a rebuttable presumption in the absence of gross negligence or willful misconduct that potential plaintiffs assume the risks of COVID-19 related injuries when he or she enters certain organizations that provide express warnings. The Act contains two warnings entities may use, the inclusion of which in the required location and form triggers the rebuttable presumption that the individual assumed the risks of COVID-19 injury when he or she entered the premises.

Even though Georgia places hurdles in front of some plaintiffs, the fact is that this shield law will not affect COVID-19 claims brought by employees against Georgia employers, which claims are governed by Georgia’s workers’ compensation laws. Georgia employees cannot sue their employers for injuries due to negligence but must proceed under the workers’ compensation law.

Organizations should anticipate more COVID-19 liability shield laws and review those laws with legal counsel. Some questions to consider include:

·      Is my organization in a jurisdiction with a liability shield law?

·      When does the law expire?

·      Is my organization one covered by the law or is it just for health care providers?

·      What are the protections from potential claimants such as visitors or customers?

·      Is there a standard other than gross negligence or willful misconduct?

·      Must I post notices and if so, what do they have to say?

·      If my organization is not covered by my state’s law, or if I operate in a state without any liability shield law, what other steps should I take beyond basic COVID-19 health and safety steps such as handwashing, providing hand-sanitizer, requiring facial masks, requiring social distancing, and increasing ventilation?

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