Georgia Becomes Ninth State to Protect Businesses from COVID-19 Liability
Congress continues to disagree over a key issue in drafting coronavirus legislation—business liability for individuals exposed to COVID-19 on their premises. Republicans consider protecting businesses seeking to reopen from frivolous and burdensome lawsuits to be a top priority, while Democrats respond that such protections will encourage reckless behavior at the expense of vulnerable workers and customers.
While legislation addressing business concerns has stalled at the federal level, some states have been taking action. On August 5, 2020, Georgia joined eight other states in protecting businesses from certain liabilities arising from COVID-19. The Georgia COVID-19 Pandemic Business Safety Act provides businesses with a defense to COVID-19 lawsuits if they can establish that they did not act with gross negligence, willful and wanton misconduct, or reckless or intentional disregard of the risks associated with COVID-19. The Act also allows businesses to argue that individuals assumed the risk of contracting COVID-19 by entering the business’s premises. But, to be eligible to make this assumption of the risk argument, the business must have warned individuals that they are waiving liability for the risk of COVID-19 exposure by posting written notice at the business’s point of entry, with the statutorily required language and in the required font and size.
It is important to note that this Act creates a defense, and not an absolute bar, to COVID-19 liability claims. Individuals can still file lawsuits and businesses will be forced to spend time and money defending them. This means that it is critical for employers to take steps now so that they can later argue that those steps show that gross negligence, willful and wanton misconduct, or reckless or intentional disregard for the risks of COVID-19 did not exist. To create this proof, businesses will want to show, at the least, that they are complying with standards from the Centers for Disease Control as well as state and local government agencies. Of course, businesses should be sure to consult with their own legal counsel to determine what steps should be taken to comply with the state legislation reducing COVID-19 liabilities as well as what impact, if any, the availability of workers’ compensation insurance might have on COVID-19 related claims by employees against employers. Please reach out to your Client Experience Manager with any questions or for assistance.
This article is for informational purposes only and should not be considered legal advice. Please consult with your legal counsel regarding any specific situation, particularly given that this is a rapidly changing area of the law.
Written by Christie Newkirk and Chelsea Glover from Carrington, Coleman, Sloman & Blumenthal, L.L.P.
Those states include Iowa, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Utah and Wyoming.
The Act applies to “healthcare facilities, healthcare providers, businesses, individuals, state government agencies, and other entities,” and entity is defined to include “any other organization other than a healthcare facility.” Ga. Code § 51-16-1.