Jordan Schwindt is an associate in MG+M’s Boston office. Her practice focuses on complex civil litigation, including general liability, products liability, and professional liability. She also has experience in areas including construction litigation, wrongful death actions, premises liability, and dram shop cases. Jordan is involved with all stages of litigation, including designing defense strategies, discovery and depositions, dispositive motions, and preparing for trial.

As phased reopening plans are initiated across the country, many business owners are fearful that reopening may bring with it the possibility of significant liability exposure for COVID-19 related lawsuits. Businesses already feeling the impact of a national economic crisis could face an even more devastating financial impact absent some type of protection. It is inevitable that members of the public will continue to contract COVID-19, despite the precautionary measures in place and those contemplated by businesses that have yet to open. Many argue that in order to seriously consider reopening, businesses must be afforded some legal certainty that they will not face a flood of lawsuits from individuals that contract the virus. While it may be difficult for a plaintiff to ultimately prove that they contracted COVID-19 from a particular business, rather than from some other source, the costs associated with defending such lawsuits could place some businesses in financial jeopardy. In an effort to address these concerns and provide businesses with the confidence to reopen, a growing number of states have considered legislation aimed to immunize companies in various sectors from liability for potential lawsuits by individuals that contract COVID-19.

In the early stages of the pandemic, many states granted immunity to health care providers through legislation or executive order. More recently, states have both considered and enacted legislation that extends immunity to a much broader scope of businesses and other entities. For instance, North Carolina has enacted legislation offering limited immunity from civil liability for essential businesses in the state with respect to claims by customers and employees for injuries or death alleged to have been caused as a result of contracting COVID-19.[1] Emergency response entities are also afforded this immunity in North Carolina. There are, however, limitations to the immunity provided. There is no immunity if the injuries or death were caused by an act or omission of the essential business or emergency response entity that constituted gross negligence, reckless misconduct, or intentional infliction of harm.

Oklahoma offers even broader protection, as its recent legislation affords anyone who conducts business in the state immunity from liability in any civil action involving allegations of exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in compliance or consistent with federal or state regulations, executive orders, or guidance applicable at the time of the alleged exposure.[2] If two or more sources of guidance are applicable to the conduct or risk at the time of the alleged exposure, the person or business will not be liable if the conduct was consistent with any applicable guidance.

Similarly, Wyoming has passed legislation that provides immunity from liability for any health care provider or other person, including a business entity, who in good faith follows the instructions of a state, city, town, or county health officer or who acts in good faith in responding to the public health emergency.[3] Immunity does not, however, apply to acts or omissions that constitute
Continue Reading State Legislation to Immunize Businesses from Liability for Contraction of COVID-19