With the recent unveiling of the White House’s “Opening Up America Again” guidelines, governors across the country are beginning to take steps to reopen their state economies. Though the White House guidelines include gating criteria which specify certain testing and case growth benchmarks that must be met before states begin to reopen, President Trump has made it clear that the individual states will “call their own shots” as to when and how to reopen.
Amid the severe economic losses businesses have already incurred during the shutdown, the pressure on businesses to reopen is at a tipping point. Even in states that have given the greenlight for certain businesses to reopen, it is clear to business owners that it will not be “business as usual.” Despite governmental authority to reopen, businesses will undoubtedly face potential COVID-19 tort liability including personal injury and even wrongful death claims.
As business owners and industry leaders fear the surge of COVID-19 related tort claims will prevent businesses from reopening and ultimately thwart any viable path to recovery, local and federal legislators have proposed measures aimed at limiting the liability of business owners for COVID-19 related claims.
At the federal level, Senate Majority Leader Mitch McConnell (R-KY) and Senator John Cornyn (R-TX) announced they were working on an independent bill that would provide civil liability protections to businesses, nonprofits and government agencies. However, the bill has received strong pushback with other members of Congress arguing expanded liability protections will incentivize businesses to not take the appropriate steps necessary to protect employees and patrons.
State and Local Legislation
Many states have taken the issue into their own hands by passing statewide tort reform in the form of civil liability immunity statutes. For example, Utah Gov. Gary Herbert passed a law making businesses “immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19.” The law only applies to negligent conduct exempting willful, reckless and intentional misconduct.
Similarly, in California, a letter spearheaded by the Civil Justice Association of California was sent to California Gov. Gavin Newsom seeking broad litigation protection for private entities performing essential services during the current State of Emergency related to the COVID-19 pandemic. The request is rooted in California’s Emergency Services Act (Gov. Code § 8550, et seq.) which empowers the Governor to make certain emergency orders during times of crisis.
Best Practices for Reopening
Until broad litigation protections are passed, either federally or statewide, businesses will inevitably face risks associated with COVID-19 tort liability when reopening. However, even in the absence of statutory immunity, businesses can take steps to minimize these risks including the following:
- Maintaining written workplace health and safety protocols;
- Mandate social distancing protocols for workers and customers;
- Limiting access to common areas such as breakrooms, kitchens; and
- Regularly sanitizing the workplace.
Further, every business should be familiar with the applicable guidelines and regulations in their local jurisdiction as well as those provided by the CDC, OSHA, and WHO.
The attorneys at Poole Shaffery & Koegle, LLP remain ready and prepared to help your business minimize the risks faced by COVID-19 related tort claims upon reopening.