By Rob Gilmore, Melissa Yasinow & Alexis Preskar
The next big battle for re-opening businesses is heating up: whether, and to what extent, businesses will receive immunity relating to worker and customer COVID-19 infections. On the one hand, businesses and employers want to know that, if they re-open safely, they will be immune from frivolous lawsuits. With over 1,000 COVID-19 related lawsuits filed across the country, it is understandable that many businesses, particularly small businesses, would be hesitant to re-open without basic immunity guarantees in place.
On the other hand, consumer and employee advocacy groups are concerned that businesses will cut corners, endangering both their workers and the public, if there is a blanket civil immunity. Although many businesses are going above and beyond state and federal guidelines, a few very public bad actors, such as the two Utah businesses that required staff to report to work despite testing positive for the coronavirus, have soured much of the public on business immunity protections.
This debate is now raging in the halls of Congress. Senate Majority Leader Mitch McConnell has publicly declared that any future COVID-19 relief bill must include broad immunity protections for businesses. In contrast, House Speaker Nancy Pelosi has opposed such efforts. Whether, and how, a compromise could pass Congress is further complicated by the fact that civil liability is generally left to the states, and federal pre-emption would likely result in litigation on its own.
In response to this federal uncertainty, many state legislatures, and even private businesses, are taking matters into their own hands. Several states have already passed laws providing for some form of civil immunity to re-opening businesses, although the scope of these protections vary. For example, Utah’s law applies to all businesses, with exceptions for willful misconduct, while North Carolina’s law is more limited, applying to only “essential businesses” and “emergency response entities.” Likewise, at least six states, including Ohio, have passed or are currently considering immunity legislation. Ohio’s legislation, H.B. 606 passed through the the House on May 28, 2020, and will now move to the Senate for consideration. it grants civil immunity only to “essential businesses” while Ohio is in a declared state of emergency, and those businesses could still be held liable if they act in bad faith or in a wanton or reckless manner.
Some private businesses are attempting to shift the liability onto their employees and customers by having them sign waivers or by issuing disclaimers that patrons are “assuming the risk” of being exposed to COVID-19. Although waivers and disclaimers can work in certain circumstances—for example, when a customer is engaging inherently dangerous activity like bungee jumping—it is unlikely that these preemptive protections will withstand scrutiny if a business does not adopt and enforce meaningful COVID-19 safety protocols.
While businesses in Ohio wait for other legislation to settle, H.B. 573 makes employee coronavirus cases a matter for the Bureau of Worker’s Compensation to address. Specifically, it would create a presumption that coronavirus is an occupational disease if the employee “was required to work by the employee’s employer outside of the employee’s home” from March 9, 2020 (the day Governor DeWine signed Executive Order 2020-01D declaring COVID-19 an emergency) to 14 days after the emergency ends. This presumption can be rebutted by affirmative evidence. This method would cut out direct lawsuits between employers and employees, and would shift the matter to the BWC to resolve.
We will continue to monitor state and federal legislation relating to business civil immunity in the COVID‑19 era. As businesses re-open, however, it is vital that they do so in a planned and controlled manner with an eye towards employee and customer safety. For more information on how businesses can safely re-open and comply with relevant local, state, and federal guidelines, please contact Rob Gilmore (rsg@kjk.com / 216-736-7240), Melissa Yasinow (may@kjk.com / 216-736-7205), Alexis Preskar (avp@kjk.com / 614-427-5748) or any of KJK’s Labor & Employment professionals.