COVID-19 Liability Shields: Today’s Legislative Trend, Tomorrow’s Legal Defense

By Honore Hishamunda, Kevin Young

Seyfarth Synopsis: State lawmakers continue to search for ways to pave the path for their economies to reopen amidst the COVID-19 pandemic. The latest trend in that effort: equipping businesses with a shield against legal liability for claims related to the contraction of COVID-19. In this article, we examine the protections these shields provide, as well as their limitations.

In an earlier chapter of the COVID-19 pandemic, state and local governments focused on issuing guidance to help businesses evaluate when and how to safely reopen. As many business owners did just that, many undoubtedly saw COVID-19-related legal liability as a risk, if not a deterrent, to swinging their doors back open. What if I’m blamed for someone contracting COVID-19 on my premises? What kind of conduct will I be liable for? Am I safe if I followed public health guidance?

Today, in a new chapter of the saga, sixteen states across the country have endeavored to answer these questions and help businesses to confidently reopen by enacting COVID-19 liability shields. Similar legislation has been considered in many more states, as well as at the federal level. While not a complete cure for pandemic-related litigation, these shields should help to manage the pain presented by a wave of COVID-19 litigation that is likely to continue for years to come.

Where We Are Today

As of today, Alabama, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah, and Wyoming have enacted COVID-19 liability shields via statute or executive order.

Although each state’s liability shield differs in myriad ways, they generally share these features:

• They protect businesses (as well as their employees) from civil suits related to actual or potential exposure to COVID-19;

• They do not protect willful, reckless, intentional, or grossly negligent misconduct; and

• They do not prevent employees from filing workers’ compensation claims related to actual or potential workplace exposure to COVID-19.

Given that the immunity bills checkering this new corner of the COVID-19 landscape have been crafted at the state level, it is unsurprising that they differ in many respects, some material and others less so. Most important, the shields differ in substantive scope—e.g., which businesses they apply to, what types of actions or omissions they protect—as well as temporal scope. Idaho, for example, has established concrete beginning and expiration dates for its liability shield law, while the law in Tennessee lacks a beginning date and the law in Utah lacks an expiration date.

These laws also differ with respect to the exact types of protections they create. Among the features that some, but not all, state liability shield laws include are as follows:

• Bar on Filing. Some state shields, such as Tennessee’s, prohibit would-be plaintiffs from filing a COVID-19 lawsuit at all unless their complaint contains a statement from a physician stating that their injuries were caused by the business named in the lawsuit.

• Heightened Proof. Some states, such as Nevada, require a plaintiff to make a showing to the judge that a business-defendant did not follow public health guidance in order to proceed to trial;

• Interaction with Public Health Guidance. In some jurisdictions, such as Arkansas and Iowa, a business’s good faith effort to comply with public health guidance is recognized as a defense to liability in a COVID-19-related lawsuit. By slight but critical contrast, in other states, for example Michigan and Mississippi, a failure to substantially comply with public health guidance may preclude a business from gaining the benefit of the state’s COVID-19 liability shield.

• Posting Protection. In some states, like North Carolina, a business receives an added layer of protection if it can demonstrate that it complied with posting requirements, such as a required posting concerning its risk mitigation procedures.

• Assumption of the Risk. In Georgia, businesses that post a COVID-19 risk notice using language provided by state statute, whether at their entrances or on tickets or receipts provided to those who enter the premises, are entitled to a rebuttable presumption of assumption of the risk by a plaintiff asserting a COVID-19-related claim.

• Limitation on Damages. In Alabama, plaintiffs are limited with respect to the damages they might seek when the shield’s civil immunity does not apply.

To be sure, these are just a smattering of examples of how the state liability shield laws differ in terms of when, where, and how they apply.

What It Means

Taken together, state liability shields protections and limitations mean that, as a general matter: (a) businesses will still face lawsuits related to potential or actual COVID-19 exposure; (b) they will not be liable for claims involving ordinary negligence; and (c) they may be able to use additional tools to cabin liability, such as procedural prerequisites for plaintiffs filing suit, their own good faith efforts to comply with public health guidance, or compliance with statutory posting laws.

Where We’re Going

This is a quickly evolving area of the law. Michigan’s liability shield was signed into law just law just last week, and many other states, such as Alabama, Arizona, Delaware, Illinois, Minnesota, New Jersey, New York, and South Carolina, are considering similar laws. We are not aware of any cases interpreting these new laws just yet, but that will surely change in the coming months as plaintiffs continue to file COVID-19 related lawsuits.

On the federal level, United States Senate Bill No. 4317—which would introduce a federal COVID-19 liability shield similar to those that have popped up at the state level—is still languishing in legislative limbo. Senate Republicans have repeatedly represented that a liability shield is a pre-condition to any additional COVID-19 relief, while legislators across the aisle have thus far opposed a federal shield. This is certainly an area to watch.

We are actively tracking COVID-19 liability shields across the country and will continue to do so.