Although concerns that businesses will be hit by huge wave of lawsuits alleging COVID-19-related liabilities have largely failed to materialize, a number of states have nonetheless taken action to provide at least some immunity.
While federal lawmakers debate whether to include business immunity to COVID-19-related lawsuits in the next round of pandemic relief, many states have already taken action to blunt potential employer liability. The rub is that to date, the federal government has failed to issue any pandemic safety rules that carry the force of law. As a result, many stakeholders wonder exactly what impetus will be left for employers to do the hard job of protecting workers as much as possible from coronavirus infection, and the associated risk of bringing it home to often more vulnerable family members, if businesses know that the litigation avenues for holding them accountable for health and safety failures will be closed off or greatly narrowed.
As to liability concerns, the much-feared tsunami of litigation over COVID-19 injury and exposure has so far mostly failed to materialize.
Labor and employment suits. According to a “COVID-19 Complaint Tracker” prepared by law firm Hunton Andrews Kurth, as of July 20, 2020, there have been 312 labor and employment lawsuits filed, with only 67 challenging conditions of employment, including lack of personal protective equipment, exposure to COVID-19 at work, wrongful death, and personal injury. There was one WARN Act case, 158 unlawful termination cases, 38 state and federal wage cases, three retaliation cases, 18 case raising leave of absence claims, 12 discrimination cases (especially age, national origin, and sex/pregnancy), three state and federal disability disputes, and 15 “other.”
Consumers. To date, Hunton Andrews Kurth has found only 246 consumer cases, with only four cases alleging wrongful death from exposure to COVID-19 in a public place, and 13 personal injury cases from exposure to the coronavirus in a public place. Rather, the majority of consumer lawsuits seek refunds related to cancellations or postponements; despite the huge number of cancelled events over the past several months, the tracker shows only 116 cases in this category. Other consumer cases arise from price gouging, recurring membership fees, or deceptive advertising.
Nevertheless, many states have taken action to blunt the risk that businesses will be held liable for COVID-19-related injuries. The listing below is representative but not exhaustive.
Iowa. On June 18, Iowa Governor Kim Reynolds signed into law S.F. 2338, the “COVID-19 Response and Back-to-Business Limited Liability Act,” which provides limited liability to business owners. A person who possesses or is in control of a premises, including a tenant, lessee, or occupant of a premises, who directly or indirectly invites or permits an individual onto a premises, is not liable for civil damages for any injuries sustained from the individual’s exposure to COVID-19 unless the person who possesses or is in control of the premises:
- Recklessly disregards a substantial and unnecessary risk that the individual would be exposed to COVID-19;
- Exposes the individual to COVID-19 through an act that constitutes actual malice; or
- Intentionally exposes the individual to COVID-19.
There is also a safe harbor for compliance with regulations, executive orders, or public health guidance. A person is not liable for civil damages for any injuries sustained from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in substantial compliance or was consistent with any federal or state statute, regulation, order, or public health guidance related to COVID-19 that was applicable to the person or activity at issue at the time of the alleged exposure or potential exposure.
North Carolina. On July 2, North Carolina Governor Roy Cooper signed into law H.B. 118, which gives individuals and private, nonprofit, government, and other entities limited liability from claims arising from acts or omissions alleged to have resulted in COVID-19 infection that do not amount to gross negligence, willful or wanton conduct, or intentional wrongdoing.
Individuals or entities who own or have in their possession, control, or custody a premises must provide reasonable notice of actions taken for the purpose of reducing the risk of COVID19 transmission to individuals who are present on the premises, and will not be held liable for the failure of any individual to comply with rules, policies, or guidelines contained in the required notice.
This provision does not apply to premises owned by an individual, other than premises that are used in the operation of a sole proprietorship, or to claims before the Industrial Commission seeking benefits payable under the Workers’ Compensation Act, Article 1 of Chapter 97 of the General Statutes.
Several other states have taken similar actions:
- Alabama. On May 8, Alabama Governor Kay Ivey issued a Proclamation under which businesses and other covered entities are not liable for COVID-19-related death, injury, or property damage unless it is shown by “clear and convincing evidence” that the death, injury, or property loss was caused by the covered entity’s wanton, reckless, willful, or intentional misconduct. Where there is liability, but no “serious physical injury,” the covered entity is only liable for “actual economic compensatory damages” (not non-economic or punitive damages). A person asserting a wrongful death claim is only entitled to punitive damages.
- Arkansas. Issued on June 15 by Arkansas Governor Asa Hutchinson, Executive Order 20-33 provides that all businesses and their employees are immune from civil liability as a result of exposure to COVID-19. However, the immunity does not apply to willful, reckless or intentional misconduct. There is a presumption that the actions are not willful or reckless if the business owner substantially complies with public health directives.
- Kansas. Signed into law by Kansas Governor Laura Kelly on June 8, H.B. 2016 creates the “COVID-19 Response and Reopening for Business Liability Protection Act.” A person, or agent of such person, conducting business in Kansas is immune from liability in a civil action for a COVID-19 claim if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the cause of action when the cause of action accrued. This protection expires on January 26, 2021, and applies retroactively to any cause of action accruing on or after March 12, 2020.
- Louisiana. Under H.B. 826, signed by Louisiana Governor John Bel Edwards on June 13, no person or local or state government or political subdivision is liable for civil damages for injury or death resulting from exposure to COVID-19 in the course of, or through the performance of, a person’s business operations unless it is proven that the person, government, or political subdivision was not in substantial compliance with applicable COVID-19 procedures, and unless the damage was caused by gross negligence or wanton or reckless misconduct.
- Oklahoma. On May 21, Oklahoma Governor Kevin Stitt signed into law S.B. 1946, under which a person or agent of the person who conducts business in the state is not liable in a civil action for an injury from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in compliance or consistent with federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time of the alleged exposure. Where two or more sources of guidance are applicable to the conduct or risk at the time of the alleged exposure, there is no liability if the conduct is consistent with any applicable guidance.
- Utah. Under S.B. 3007, signed by Utah Governor Gary Herbert on May 4, individuals, companies, and other covered entities are immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises they owned or operated or during an activity they managed, except where there is willful misconduct, or reckless or intentional infliction of harm. The liability does not apply to Utah’s Workers’ Compensation Act, Occupational Disease Act, Occupational Safety and Health Act, or Governmental Immunity Act of Utah.
- Wyoming. Signed by Wyoming Governor Mark Gordon on May 20, S.F. 1002 provides that when a business or other covered entity in good faith follows the instructions of a state, city, town, or county health officer, or who acts in good faith in responding to the public health emergency, they are immune from any liability arising from complying with those instructions or acting in good faith. However, the immunity does not apply to acts or omissions constituting gross negligence or willful or wanton misconduct.
How the courts will interpret these limited immunity laws remains in question.
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