July 20, 2020

Since the mid-May adjournment of the Missouri General Assembly’s 2020 regular session, Governor Mike Parson (R) has been urged by businesses, organizations, and individuals to call a special session regarding potential COVID-19 lawsuits. So far, Missouri has not acted. But that is not the case in dozens of other states across the U.S. The Missouri Chamber of Commerce and Industry has led the effort as more than 600 signatures have been added to the Chamber’s appeal letter to the Governor.

According to the Chamber, many business leaders are concerned they could be targeted in lawsuits that allege someone contracted the virus on their premises. Today, these lawsuits can move forward in Missouri regardless of whether businesses are taking proper precautions against virus transmission.

But while Missouri waits, many states are acting. All but one of Missouri’s neighboring states had already enacted some form of COVID-19 liability protections by June 18.

Mississippi is another state that has acted. In June, the Mississippi Legislature and Governor Tate Reeves (R) enacted new legislation (S.B. 3049 – Mississippi Back to Business Liability Assurance and Health Care Emergency Response Liability Protection Act) that ensures the protection of businesses, nonprofits, churches, and healthcare workers from COVID-19 related claims – a potential impediment to getting businesses back on-line. A concern especially for businesses which may have been required to stay open during the pandemic or have already begun to open, the new Mississippi law relieves the threat of lawsuits over COVID-19 cases by establishing reasonable safeguards and giving Mississippi courts clear direction to distinguish valid claims from meritless lawsuits in this unprecedented time.

The act is comprehensive in its coverage, shielding most Mississippi entities and organizations from lawsuits related to COVID-19 if they show a “good faith” effort to follow public health guidelines. The bill states that if a business “attempts in good faith to follow applicable public health guidance shall be immune from suit for civil damages for any injuries or death resulting from or related to actual or alleged exposure or potential exposure to COVID-19 in the course of or through the performance or provision of its functions or services.

Two major components of the bill are:

  • The standard of proof states, “The immunities provided in this act shall not apply where the plaintiff shows, by clear and convincing evidence, that a defendant, or any employee or agent thereof, acted with actual malice or willful, intentional misconduct.”
  • Businesses will be protected for up to one year after the end of the state of emergency.

In neighboring Louisiana on June 13, Louisiana Governor John Bel Edwards (D) signed into law House Bill 826, which grants liability protections for businesses from claims brought by both customers and employees related to COVID-19 exposure. The bill, which is retroactive to March 11, 2020, when Louisiana declared its state of emergency related to COVID-19, provides as follows:

  • Businesses are not liable for damages for injury or death related to actual or alleged exposure to COVID-19 in the course of business operations unless the business “failed to substantially comply with the applicable COVID-19 procedures established by the federal, state or local agency which governs the business” and the injury or death was caused by the business’s “gross negligence or wanton or reckless misconduct.” If more than one set of procedures or guidelines applies to the business, the business must only “substantially comply” with one of them.
  • Planners of any kind of events (for example, conventions, trade shows, sporting events) cannot be held liable for injury or death related to actual or alleged COVID-19 exposure “unless such damages were caused by gross negligence or willful or wanton misconduct.”
  •  An employee who contracts COVID-19 in the workplace has no tort remedy against the employer unless the exposure resulted from an “intentional act.” In Louisiana, as in many states, this is a very difficult threshold for an injured employee to meet.

And, what about actions in other states? Bills signed into law by the governors of North Carolina, Oklahoma, Utah, and Wyoming go far beyond the immunity that several states granted to health care providers at the onset of the coronavirus pandemic. North Carolina provides immunity to a broader swath of “essential businesses,” such as grocery stores and restaurants, from liability for any harm caused by COVID-19. Oklahoma, Utah, and Wyoming provide immunity to everyone, if safety rules are followed, and no laws are broken.

More than half the states in the country have granted some form of immunity to health care providers, according to the American Tort Reform Association. The organization says such policies are necessary to protect COVID-19 response efforts.

The governors of Alabama, Arizona, Arkansas, Connecticut, Delaware, Georgia, Hawaii, Illinois, Iowa, Kansas, Michigan, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Tennessee, Vermont and Virginia signed executive orders granting various degrees of limited immunity to health care providers and facilities, an ATRA report says.

Legislation to provide immunity to health care providers and facilities was passed by legislatures in Alaska, District of Columbia, Kentucky, Massachusetts, New Jersey, New York, and Wisconsin.

Congressional leaders also are discussing federal protection for businesses in future coronavirus relief spending bills. National and state Chambers of Commerce and other business organizations are pushing for a broad, nationwide liability protection for businesses that do their best to comply with safety standards. Members of Congress are continuing to debate the merits of these proposals, and key leaders have vowed to see their implementation. What a federal COVID-19 immunity statute may ultimately look like, if enacted, remains unclear.

Republican leaders in Congress have said another COVID-19 relief package would need to include business liability protection. Democrats and unions oppose the immunity, saying it could encourage lax practices by businesses. Whether the protections work as intended is untested.

As Congress debates, nearly 30 states have considered some sort of liability protection proposal since the pandemic first erupted across the country earlier this year, according to the National Conference of State Legislatures. Only a handful have failed to pass such legislation, while some governors have decided to tackle the issue by issuing executive orders.

Dan Mehan, president and CEO of the Missouri Chamber of Commerce and Industry, said, “It’s clear that many states, including our neighboring states, understand that these lawsuits are a serious concern that must be addressed if we expect our economy to make a robust recovery. We want businesses to reopen and help get Missourians back to work, but employers in our state are well aware that they might be inviting COVID-19 lawsuits regardless of the precautions they take to keep employees and customers safe. We need to protect these businesses that are doing everything they can to create a safe workplace.

We are not asking lawmakers to protect businesses that ignore government orders and defy public health recommendations. But companies that are taking the necessary precautions should not be subject to crippling COVID-19 litigation. There is strong support for calling a special session on this topic, and we urge Governor Parson bring legislators back to Jefferson City so they can take action,” Mehan said.

It remains to be seen what action, if any, Missouri will take. But, COVID-19 liability measures can look very different. All first responders, front-line workers and essential businesses should be active in formulating these policies.

Missouri Chamber of Commerce and Industry, June 25, 2020
Greater Hattiesburg, MS Area Development Partnership, July 13, 2020
Claims Journal June 1, 2020 (report by Jim Sams)
National Law Review, June 17, 2020 (report by Jones Walker LLP)
MARKETPLACE, June 19, 2020 (report by Samantha Fields)
Business Bridge, July 13, 2020 (report by Paula Gardner)
The Associated Press, July 7, 2020 (report by Jonathan Mattise and Kimberlee Kruesi))
CNBC, June 19, 2020 (report by Annie Palmer)