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States Prolong Covid-19 Liability Shields as Pandemic Persists

April 20, 2021, 5:38 PM

Limitations on Covid-19 liability lawsuits are getting an extended lifespan in several states, as the pandemic drags on and business groups continue to warn of a possible wave of litigation.

The extensions come as many states more fully reopen businesses and schools and vaccination rates increase, even as signs of a resurgence in coronavirus cases and new variants emerge across the country. While some of those measures prolong what was seen as provisional legislation for a year or more, other bills extend those protections indefinitely.

“We don’t know when, or really if, Covid is going to end,” said Ashley P. Cuttino, a Greenville, S.C., attorney who co-chairs the Covid-19 litigation practice for Ogletree Deakins. She predicted more states will extend the duration of their liability protections or enact liability shields with no expiration date, as Florida recently did.

“In a lot of ways that makes sense. It doesn’t make sense to say a business would be protected today but not tomorrow, especially when we don’t know what the long-term effects of Covid are,” Cuttino said. “It is still open-ended, and it probably will be for some time.”

Chambers of commerce and other business groups have lobbied persistently for liability protections to spare businesses from a wave of pandemic-related lawsuits that might seek to blame them for customer or employee exposure to the virus. Worker’s compensation laws already bar employees from suing their employers in court over workplace injury or illness claims with few exceptions, and evidence suggests businesses have faced only a ripple of virus-related liability claims so far.

Thomas J. Mew, a plaintiffs-side employment lawyer at Buckley Beal in Atlanta, said he’s doubtful most businesses will face a flood of virus-related liability lawsuits, although he said places such as nursing homes where residents spend all their time face a bigger risk of litigation.

“From a practical level, it’s generally going to be challenging to prove that one contracted Covid-19 at a particular place,” especially for a store or restaurant where a customer visits for a few minutes or an hour, he said. Nevertheless, he said there’s a lingering tension between protecting public health and preventing economic stagnation that’s highlighted by the liability shield measures.

“We are seeing” virus-related liability lawsuits, Ogletree’s Cuttino said. “We’re not seeing tens of thousands of them.”

“I do think these laws are having the impact they’re designed to have, which is to limit those types of lawsuits and get businesses reopened in a safe manner,” she added.

Half of All States

Georgia was one of more than a dozen states that passed Covid-19 liability shields last year, giving businesses, health-care providers, and other entities broad immunity unless the person suing can show gross negligence or willful misconduct.

Now, legislation awaiting action by Gov. Brian Kemp (R) would push back the expiration date of that state’s Covid-19 liability shield law by 12 months, keeping those limits in place until July 2022. The move mirrors a bill that Kansas Gov. Laura Kelly (D) signed last month, extending that state’s liability shield by a year to March 2022.

Other state legislatures—mostly those with Republican majorities—have prioritized the issue in 2021, bringing the broad liability protections that shield most or all businesses to roughly half of all states now. Additional states have passed narrower liability protections targeted toward health-care providers and suppliers of protective equipment such as masks, gloves, and hand sanitizer.

Several of the states that passed liability laws in 2020, including Georgia, fashioned them as temporary, short-term protections for businesses and medical providers struggling to operate during the pandemic.

“The idea was maybe we’ll be on the other side of this pandemic by that time and let’s do something short term,” Mew said. “But what I think it shows, the extension, is that we’re continuing to live with this pandemic environment.”

Like their counterparts in Georgia and Kansas, state lawmakers in Alabama and Arkansas enacted legislation this year to extend the liability protections. In those cases, the laws codified the effects of temporary emergency orders issued by the Alabama and Arkansas governors during 2020.

The duration of the protections varies from state to state. In Alabama, the liability shield expires one year after the governor’s public health emergency declaration is lifted, and in North Carolina the protections expire 180 days after the emergency declaration ends. South Dakota and Tennessee policymakers set their liability shields to sunset in 2022.

In Montana, state lawmakers designed the liability protections to last until 2031. And like Florida, a number of states including Oklahoma and West Virginia have enacted liability shield laws that don’t carry any expiration date at all.

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

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; Travis Tritten at ttritten@bgov.com

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