As if trying to safely remain open, or reopen, your small business amid the coronavirus pandemic hasn’t been challenging enough, dodging coronavirus liability lawsuits can quickly complicate matters even more. These lawsuits are typically brought against business owners by workers or customers who allege they were infected by COVID-19 due to negligence on behalf of the business and have already been brought against major brands and retailers, including Tyson, Walmart and Safeway. While there is bipartisan support for national coronavirus liability protection laws for businesses, the House and Senate have been unable to reach a deal and, at this time, there is not a federal mandate in place.
As such, at least 13 states, including Kansas, have moved to adopt their own laws to protect persons conducting business from a potential wave of coronavirus-related civil actions brought against them by so called “ambulance chasers”. These laws prevent business owners from facing penalties if a flare-up of COVID erupts in their workplace, store, restaurant or factory, as long as the business is in compliance with public health directives and has not acted with gross negligence.
Kansas Governor Kelly Signs HB 2016
On June 8, 2020, Governor Kelly signed HB No. 2016, which, among other things, provides immunity to persons conducting business from COVID-19 related civil actions if they were acting pursuant to and in substantial compliance with public health directives. Details can be found in Sections 8 through 15 of the bill and are known as the COVID-19 Response and Reopening for Business Liability Protection Act. Here’s what Kansas business owners should know:
Business Liability, Section 11: The business liability section gives immunity to businesses from COVID-19 civil claims and is retroactive to any cause occurring on or after March 12, 2020, and expires on January 26, 2021. Section 11 states: “Notwithstanding any other provision of law, a person, or an agent of such person, conducting business in this state shall be immune from liability in a civil action for a COVID-19 claim if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the cause of action when the cause of action accrued.” Public health directives include state statutes, rules and regulations or executive orders issued by the governor, in addition to federal statutes or regulations.
According to HB No. 2016, a claim is defined as “any claim for damages, losses, indemnification, contribution or other relief arising out of or based on exposure or potential exposure to COVID-19. This includes claims made by or on behalf of any person who has been exposed or potentially exposed to COVID-19, or any representative, spouse, parent, child or other relative of such person, for injury, including mental or emotional injury, death or loss to person, risk of disease or other injury, costs of medical monitoring or surveillance, or other losses allegedly caused by the person's exposure or potential exposure to COVID-19.”
Products Liability (Section 12): In section 12 of HB No. 2016, persons who design, manufacture, label, sell, distribute, provide or donate qualified products in response to COVID-19 are granted immunity from product liability claims if:
“The product was manufactured, labeled, sold, distributed, provided or donated at the specific request of or in response to a written order or other directive finding a public need for a qualified product issued by the governor, the adjutant general or the division of emergency management; and the damages are not occasioned by willful, wanton or reckless disregard of a known, substantial and unnecessary risk that the product would cause serious injury to others.”
Immunity to product liability claims is also retroactive to any cause occurring on or after March 12, 2020, and expires on January 26, 2021
The Act also directly addresses liability protection for healthcare providers and adult care facilities in Sections 10 and 13.
Missouri Lags Behind
While it is reported Governor Parsons is in full support of coronavirus liability protection for Missouri businesses, the state has not adopted any laws to protect businesses at this time. However, on September 16, 2020, The Missouri Times reported some state senators have requested an immediate special session to address COVID liability protection.
Steps Business Owners Can Take to Help Protect Against Coronavirus Liability Suits
While business owners in states without liability protection await either a federal or local mandate, some experts suggest there are steps employers can take today to help protect their organization from COVID civil claims.
- Contact your insurance company and familiarize yourself with the policy. Ask if your policy provides any reimbursement for litigation fees and if your general liability coverage would be enough in the event of a COVID-related lawsuit.
- Follow local, state and federal public health directives. In the absence of state or local guidance, such as mask mandates and business capacity rules, implement CDC guidelines at your workplace. Andrea Sager, a small business attorney, told Business.com, “By enforcing guidelines set by the Centers for Disease Control and Prevention, you can establish a standard that could hold up in court.”
- Communicate Your COVID Workplace Rules with Employees and Customers. Your businesses COVID safety rules should be clearly communicated to employees and/or posted in a visible place for customers to see. If you will be requiring masks upon entering your business, signs should be visible, especially at store entrances. Be sure to take into consideration possible ADA exceptions.
The importance of protecting businesses, many of which have already suffered hardships due to the pandemic, from COVID-related liability lawsuits has become such an important issue that the Senate has stated no further relief measure would pass that did not include a provision that would protect America’s businesses. We will continue to follow this as more news becomes available regarding Missouri or a federal COVID-liability protection provision.
No Legal Advice
The information and materials on this site are provided for informational purposes only. They do not necessarily represent the position or opinions of Axcet HR Solutions or its employees, and they do not constitute legal advice. You should consult with a qualified lawyer of your choice who is familiar with all of the facts of your situation before making a decision about any legal matter.