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Dying Covid Liability Shield Laws Prompt Push for Their Revival

Jan. 27, 2022, 10:30 AM

Business groups are urging extension of Covid-19 liability shield laws as the measures enacted near the outset of the pandemic in places such as Ohio, Georgia, and Tennessee expire and the political pressure to retain them wanes.

Thirty states enacted Covid-19 liability shields in 2020 and 2021 that broadly immunized businesses and other entities from lawsuits blaming them for a person’s coronavirus exposure, injury, or death. The laws generally allowed cases to proceed only if those suing could show reckless conduct, gross negligence, or meet a similar standard.

In more than a half dozen states, those laws created provisional liability limits that are set to expire soon or—in the case of Ohio—have already done so. As proponents try to get them extended, generally in states with GOP-majority legislatures, they face waning interest in legislative responses to the pandemic. Where Republican governors last year were listing Covid liability protections among their top priorities, now many have shifted their focus to fighting federally-imposed vaccine mandates and banning “critical race theory” in schools.

Ohio legislative leaders “are certainly open” to extending the liability shield, said Steve Stivers, president and CEO of the Ohio Chamber of Commerce. “They just want to make sure there’s a problem to solve, and I can respect that.” He conceded his state hasn’t seen many personal injury-type lawsuits over Covid-19, but said that’s partly due to Ohio having liability protections in place until they expired Sept. 30, 2021.

“Just because there aren’t a lot of cases yet, doesn’t mean there might not be cases coming,” Stivers said, adding that he’s begun to see plaintiffs’ lawyers in other states soliciting people for potential class actions over Covid-19 exposure at large concerts or sporting events.

Covid-19 liability limits are also due to expire this year in Alabama, Georgia, Idaho, Kansas, South Dakota, and Tennessee unless state lawmakers extend them. More are set to lapse in 2023, including those in Arkansas and Kentucky.

Less Traction for Extensions

Efforts to extend the protections in Ohio have made limited progress in the legislature. One bill that would limit workplace vaccine mandates and also extend liability protections passed the House but hasn’t made it through the Senate. A second bill hasn’t left its original House committee—nearly four months after the state’s Covid-19 liability shield ended.

“There may be less of a concern over potential liability,” after almost two years of pandemic without a large wave of Covid-19 injury lawsuits, said Markus E. Apelis, an attorney at Gallagher Sharp LLP in Cleveland. “That may explain why there’s less traction to extend the immunity law than you might expect.”

Opponents of Covid-19 liability shields, including labor unions and some public health advocates, have argued they’re unnecessary and could give businesses a green light to take fewer or even no precautions to limit spread of the virus among their customers and workers. Pennsylvania Gov. Tom Wolf (D) vetoed a liability shield proposal passed by the state’s GOP-majority legislature on those same grounds in November 2020.

Even without a shield law in place, it’s a tall order for a person to prove in court that they caught Covid-19 at a particular restaurant, store, or workplace, Apelis said.

“Look at the omicron variant and how wide of a swath it’s cutting across the country,” he said. “It’s so hard to establish a personal injury claim of this kind.”

In Tennessee, business groups might face a different kind of hurdle in getting liability shield extensions passed—lingering tensions between them and Republican state lawmakers after the groups fought the legislature’s efforts to prohibit workplace vaccine mandates last year, said Billy Dycus, president of the Tennessee AFL-CIO.

“I would be real shocked if they tried to extend it,” he said.

‘Still Uncertain’ Times for Business

Nevertheless, business groups say the protections are still needed to safeguard employers from a substantial risk of litigation that could hurt already struggling companies, perhaps even causing small businesses to close. Renewing the liability shields are part of the legislative agenda that the Georgia and Ohio chambers are advocating in their statehouses.

Georgia’s liability shield is set to expire July 14. State lawmakers enacted it in 2020 and passed a one-year extension in 2021. While they’ve not made progress toward renewing it for a third year, their legislative session began just two weeks ago.

The shield laws “have been incredibly valuable to businesses. It’s been a very uncertain period of time,” said Nathan Morris, senior vice president for legislative affairs at the U.S. Chamber Institute for Legal Reform. “They gave businesses the opportunity to focus on other things, to keep their businesses running.”

“It’s still uncertain,” he said. “There’s a new variant we’re talking about this week. Guidance is still changing.”

The U.S. Chamber of Commerce warned from the start of the pandemic in early 2020 that businesses could face a wave of lawsuits. Then-Senate Majority Leader Mitch McConnell pushed for a nationwide liability shield that failed to pass Congress. Although more than 13,000 lawsuits have been filed related to Covid-19, according to a litigation tracker set up by the law firm Hunton Andrews Kurth LLP, relatively few have been the personal injury or Covid-exposure types of claims that states’ liability shield laws tend to cover.

In the workplace, states’ workers compensation laws generally block employee claims of on-the-job injury or illness from going to court, with a few exceptions.

But courts do sometimes allow claims over workplace virus exposure to proceed—as is the case for a See’s Candies factory worker in California whose husband died from Covid-19 that she alleges resulted from her exposure at work. A California appellate court recently ruled that lawsuit can move ahead, despite the company saying the claim should fall under the workers’ comp system.

“Definitely there’s litigation,” Morris said. “It’s not the volume that many were afraid it could be. That’s because of the liability shields that were adopted.”

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editor responsible for this story: Andrew Harris at aharris@bloomberglaw.com, Melissa B. Robinson at mrobinson@bloomberglaw.com

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