The pandemic brought in a wave of state legislative initiatives intended to shield businesses from liability for claims of injury caused by COVID-19. For context, at the onset of the pandemic there was uncertainty about how to prevent the spread of the virus and fear of legal liabilities were exacerbated by limited access to COVID-19 testing, incubation periods, and changing guidelines pertaining to quarantines, contact-tracing and to safe-distancing protocols. In addition, there was inconsistent access to protective equipment such as masks, hand sanitizer and other cleaning supplies.
While these liability shield laws may have effectively discouraged many plaintiff’s lawyers from bringing pandemic- related injury claims to court, they have not decreased COVID-19-related cases brought by employees, their families and customers under existing safety regulations and laws.
The Wording of Liability Protection Laws Limit their Protection!
COVID-19 business liability protection laws have given some employers a false sense of security in the belief that they cannot be held liable for COVID-19 – related incidents. A review of state laws across the country actually reaffirm the need for employers to protect employees and the public. Liability protection is only afforded to entities who are doing all that they can to adhere to federal and state guidelines. See various state laws pertaining to liability protections here.
One of many examples of business liability protection laws across the country comes from South Carolina’s COVID-19 Liability Safe Harbor Act which created a defense for employers who are “showing reasonable adherence to applicable public health guidance”. In the Act, “public health guidance” is defined as directives provided by “any applicable published guidance, directive, order, or rule provided by the South Carolina Occupational Safety and Health Administration, the South Carolina Department of Health and Environmental Control, or another state governmental entity, and federal guidance if referenced by state entities, that is applicable to the type of covered entity or covered individual at issue and to the coronavirus claim at issue”.
Additionally, many liability protection laws that were passed across the country were limited to a specific time period. For example, South Carolina’s law was only meant for claims that arose between March 13, 2020 and June 30, 2021, or 180 days after the state of emergency is lifted in the future. All liability protection laws contain a provision similar to the following from South Carolina’s COVID-19 Liability Safe Harbor Act:
“Notwithstanding any other provision of law, a covered entity or covered individual that reasonably adheres to public health guidance applicable at the time the conduct giving rise to a coronavirus claim occurs shall be entitled to immunity from liability for any acts or omissions resulting in a coronavirus claim. This immunity will not apply:
(1) if a claimant proves by a preponderance of the evidence that the covered entity or covered individual caused the injury or damage by:
(a) grossly negligent, reckless, willful, or intentional misconduct; or
(b) a failure to make any attempt to adhere to public health guidance; or
(2) for all other claims, if the claimant proves by clear and convincing evidence that the covered entity or covered individual caused the injury or damage by:
(a) grossly negligent, reckless, willful, or intentional misconduct; or
(b) a failure to make any attempt to adhere to public health guidance.”
The only way to shield your business from most COVID-19 Liabilities is to adhere to guidance and best practices per OSHA and other state and federal entities. Employers who want updated COVID-19 liability guidance should seek advice from legal counsel and human resource professionals. Your insurance liability company will also prove to be an excellent resource for best practices and liabilities pertaining to COVID-19. To learn what steps you can take to minimize legal liabilities, see my article Minimizing COVID-19 Liabilities in the Workplace.
©Denise Scotti-Smith 2021. All Rights Reserved.
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