As the pandemic continues, ICSC members seek certainty that by following the best available health guidelines from the appropriate federal and state agencies they will not be subject to baseless lawsuits.
More than 1,500 cases involving worker safety and the pandemic have been filed nationwide, according to an online litigation tracker by Fisher Phillips, a national labor and employment law firm. In addition, the U.S. Chamber’s Institute for Legal Reform reports that more than $23 million was spent by plaintiffs’ firms on COVID-19-related lawsuit advertisements last year, which suggests litigation will likely increase.
While there was much ado on this issue last year, Capitol Hill declined to act on legislation. Now with a new Democrat-controlled Congress, ICSC and other business groups, led by the U.S. Chamber, are focused on liability protection that may be more targeted and limited in scope than the Safe to Work Act introduced in 2020. ICSC supports legislation that provides a good faith standard for businesses and allows COVID-19 cases to be moved to federal court to prevent a patchwork quilt of court decisions.
States are not waiting for a federal solution. In 2020, 16 states passed laws that civilly protect businesses from liability from plaintiffs alleging damages from contracting COVID-19 on the premises. These states include Alabama, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah and Wyoming.
In 2021, more states continue to introduce legislation. These measures typically target premises liability for businesses, liability for healthcare workers and facilities, and employer liability. The protections that states are providing do not generally apply if their actions were the result of “intentional,” “grossly negligent” or “reckless” behavior, or otherwise if they failed to substantially comply with COVID-19 federal, state, or local procedures.
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Premise Liability
Five states currently have measures that have progressed to the second chamber of their legislatures: Indiana (SB 1 and HB 1002), Kentucky (HB 10), Montana (SB 65), South Dakota (HB 1046) and Wisconsin (AB 1).
Although these states are furthest along legislatively, other states are hearing or considering similar legislation: Alabama (SB 30), Arizona (SB 1377), Arkansas (SB 17), Connecticut (HB 5125), Florida (HB 7), Maryland (HB 508), Missouri (SB 51), New Hampshire (HB 149), New York (AB 4102), Oregon (HB 2638) and Wyoming (SF 19).
Florida’s bill is similar to the Tennessee COVID-19 Recovery Act (signed into law in August 2020) in that it requires the plaintiff to submit an affidavit signed by a physician actively licensed in the state which attests to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s COVID-19-related damages, injury, or death occurred as a result of the defendant’s acts or omissions.
The Florida legislation also contains a “good faith effort” portion regarding “substantially comply[ing] with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued” that would also allow for a defendant to not be held liable and would be immune from civil liability. Absent at least gross negligence proven by clear and convincing evidence, the defendant is not liable for any act or omission relating to a COVID-19-related claim.
Texas Governor Greg Abbott (R) is pushing for a liability protection bill in his state, but one has yet to be formally introduced. His office is currently the process of drafting a proposal that is expected to be taken to the state legislature.
Employer Liability
Some measures specifically call out protections for employers in the event that their employees bring an action for contracting COVID-19. North Dakota HB 1376 provides that an employer is immune from civil liability for damage, loss or injury that results from an employee contracting, being exposed to, or potentially being exposed to COVID-19 during the course of employment. In New Hampshire, SB 63 explicitly protects businesses in the event that their employees contract COVID-19, but again only if they are in compliance with government health guidelines. New Jersey AB 3951 provides that an employer would not be liable to an employee for civil damages for injury or death related to an act or omission by the employer that allegedly resulted in the employee’s exposure to COVID-19 during the public health emergency and state of emergency declared by the Governor.
In New Jersey, AB 390 particularly stands out. Under this measure, any provision in any contract, agreement or understanding relating to the employment, hiring or retaining of the services of any person, including but not limited to employees, independent contractors and interns, that exempts the employer or hiring party from liability for damages for personal injury or death caused by or resulting from the employer's negligence in connection with the employer's or hiring party's handling of measures related to the COVID-19 pandemic shall be deemed to be void as against public policy and wholly unenforceable.