On the heels of rolling executive orders from Governors across the country granting civil immunity to healthcare organizations and workers during the COVID-19 crisis, States are now moving to protect businesses as well.
As of June 19, 2020, Louisiana, North Carolina, Oklahoma, Utah, and Wyoming have enacted laws that grant businesses immunity from civil lawsuits related to the coronavirus. Businesses that remained open during the crisis and those now beginning to reopen welcome the immunity protections. Worker and consumer advocates decry the legislative developments, calling them an unfair limitation on legal recourse.
The protections cover essential businesses that have kept our lives going with grocery, transportation, take-out food, and utilities throughout the shelter in place orders. Some of the States are issuing broader protections that extend to virtually every business. Some also seek to protect manufacturers and suppliers of personal protection equipment and medicines for the treatment of COVID-19 from civil product liability lawsuits.
Louisiana is the latest state to grant businesses immunity from civil liability for claims relating to COVID-19. Louisiana Senate Bill 435, which provides a limitation of liability during the coronavirus public health emergency, took immediate effect, and is retroactive to March 11, 2020. The bill is similar to similar laws in other states granting immunity from damages or injury claims resulting from actual or alleged COVID-19 exposure during a business operation. Although this law grants immunity unless a business failed to comply with COVID-19 federal, state, or local guidance.
North Carolina lawmakers and the Governor enacted the North Carolina COVID-19 Recovery Act in early May. The Act includes Article 48, Limited Business Liability, which describes the protections from liability for harm caused by COVID-19 granted to a healthy slice of “essential businesses and operations as defined in the Governor’s Executive Order of March 30,2020. The broad definition includes healthcare, infrastructure, grocery, human resources, restaurants, food and beverage production, pharmacies, farmers markets, agriculture, hardware, and a host of other industries and retail operations.
To fall into the category of “essential business” in North Carolina, an entity must also meet the social distancing requirements set out in the executive order.
When they do meet the definitions and requirements, these North Carolina businesses will be immune from “claims from any customer or employee for any injuries or death alleged to have been caused as a result of the customer or employee contracting COVID-19 while doing business with or while employed by the essential business.” The protections do not apply in situations of gross negligence, reckless misconduct, or intentional infliction of harm.
The immunity shield runs from the March 30 Executive Order and expires when the emergency declaration is no longer in effect.
On May 15, Oklahoma’s Governor signed immunity protections into law for individuals, firms, partnerships, corporations, or associations relating to claims that an individual was exposed or potentially exposed to COVID-19. This is an extremely broad, inclusive definition that will protect many businesses from liability.
The law states that, “[A] person or agent of the person who conducts business in this state shall not be liable in a civil action claiming an injury from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care of the person or agent 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.”
The COVID-19 guidance cited is defined as written guidelines issued by the Centers for Disease Control and Prevention, Occupational Safety and Health Administration, Oklahoma state departments of health and commerce and other state commissions, boards, or agencies. The new law provides that if there are any conflicts between said guidelines, compliance with any applicable source will suffice.
The immunity will apply to lawsuits filed after the effective date of the new law.
Utah is also now home to a very expansive COVID-19 immunity law for businesses. The immunity shield is available to any “person” as defined in Utah Code 68-3-12.5 The vastly broad definition includes: an individual, association, institution, corporation, company, trust, LLC, partnership, political subdivision, government office and any other organization or entity.
Virtually every Utah business is now immune from COVID-19 related civil claims for “damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the person, or during an activity managed by the person.” Willful misconduct, reckless infliction of harm, and intentional infliction of harm are not protected under the Utah COVID-19 business immunity law.
Any person or business entity who acts in good faith in responding to the COVID-19 health emergency and follows the instructions of state, city, town, or county health officials is immune from any liability arising from complying with those instructions. So says the recently amended the immunity from liability provisions in Wyo. Stat. Ann. § 35-4-114.
In line with other state’s immunity laws, the Wyoming law excludes gross negligence or willful or wanton misconduct from the immunity shield. The bill expires on June 30, 2021.
COVID-19 Business Immunity Laws in Additional States
Several other states have recently put forth or are in the midst of developing similar COVID-19 business immunity laws. The trigger seems to be the reopening of businesses and attendant concerns that they will face a flood of lawsuits from people who become infected and claim it happened at the business.
The Arizona Senate is now considering House Bill 2912. The House bill says any person who operates or owns a business in Arizona is not liable for COVID-19 infections in persons that entered or remained on the business premises during the public health emergency, unless the defendant acted with gross negligence. This applies to strict liability, premises liability or negligence actions. The protection runs during the health emergency and ends on April 1, 2021.
On May 26, 2020, the Kansas Governor vetoed Kansas House Bill 2054 which enacted the Coronavirus Response and Reopening for Business Liability Protection Act.