Is your business safe from Covid lawsuits?

Our friends at the law firm of Berman, Fink Van Horn PC just published an excellent article on protecting your business from Covid lawsuits. Although written with healthcare providers in mind, the legal guidelines and protective acts could apply to any business.

Attorney Kenneth Winkler offers the following summary of the new Georgia law:
Under the “Georgia COVID-19 Pandemic Business Safety Act” (the “Act”), Georgia businesses and hospitals will receive some protection from liability from claims related to COVID-19. The Act, signed into law by Governor Brian Kemp on August 6, 2020, provides substantial liability limitation against tort claims.

Who is protected by the Act?
The Act is quite broad, providing protections to healthcare facilities and providers, entities, and individuals.

The expansive nature of the Act can be seen in its definition of “Entity,” which is defined as follows:

“any association, institution, corporation, company, trust, limited liability company, partnership, religious or educational organization, political subdivision, county, municipality, other governmental office or governmental body, department, division, bureau, volunteer organization; including trustees, partners, limited partners, managers, officers, directors, employees, contractors, independent contractors, vendors, officials, and agents thereof, as well as any other organization other than a healthcare facility.” Thus, the Act covers all manner of businesses and those associated with businesses.

The Act also protects medical workers and all types of healthcare providers and facilities, including:

hospitals and other medical facilities and “any dentist, podiatrist, optometrist, pharmacist, psychologist, clinical social worker, advanced practice registered nurse, registered optician, licensed professional counselor, physical therapist, massage therapist, marriage and family therapist, chiropractor, athletic trainer . . ., occupational therapist, speech-language pathologist, audiologist, dietitian, physician assistant, cardiac technician, emergency medical technician, paramedic, or related parties.”

What Protections does the Act Provide?
The Act provides that “[n]o healthcare facility, healthcare provider, entity, or individual, shall be held liable for damages in an action involving a COVID-19 liability claim against such healthcare facility, healthcare provider, entity, or individual, unless the claimant proves that the actions of the healthcare facility, healthcare provider, entity, or individual, showed: gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”  

A COVID-19 liability claim is broadly defined as covering causes of action arising from:
(A) “[t]ransmission, infection, exposure, or potential exposure of COVID-19 to a claimant,”

(B) “[a]cts or omissions by a healthcare facility or healthcare provider in arranging for or providing healthcare services or medical care to the claimant,” or

(C) “[m]anufacturing, labeling, donating, or distributing personal protective equipment or sanitizer that is directly related to providing such personal protective equipment or sanitizer to claimant by any entity during a public health state of emergency for COVID-19, which departs from the normal manufacturing, labeling, donating, or distributing personal protective equipment of such entity”.

Assumption of Risk is Presumed
Except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, in any action involving a COVID-19 liability claim against and individual or entity, the Act provides a rebuttable presumption that the claimant assumed the risk of transmission, infection, exposure or potential exposure. However, for this presumption to apply, a statutory warning must be posted at a point of entry or printed on a receipt or proof of purchase for entry.

The Act provides the following language for a receipt or proof of purchase for entry, to be printed in at least ten-point Arial font, placed apart from any other text:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

For signs to be posted at a point of entry, the Act provides the font must be in at least one-inch Arial font, placed apart from any other text, as follows:

Warning
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

Limitations to the Act
The Act is only available for causes of action that accrue through July 14, 2021, unless otherwise extended by state lawmakers. Additionally, the Act also does not modify or supersede the terms or requirements applicable under the criminal code, health regulations, workers’ compensation program, emergency management laws, or executive orders.

Tips for Employers
The Act provides needed protection for employers in this environment, especially those with operations not conducive to remote work.  It is important to recognize, however, that the Act does not remove an employer’s obligation to take reasonable steps to provide a safe work environment.  In order to gain the protection of the Act, reduce liability, and protect the health of its employees, employers should take the following measures:

1. Post signage with the required Warning at the entrance of your business;
2. Follow guidance from the CDC, OSHA, and the EEOC;
3. Comply with the Governor’s Executive Orders;
4. Continue to allow remote work where practical; and
5. Be as flexible as possible with employees who have an underlying health condition that may require reasonable accommodation or who are otherwise considered to be at high risk.

Conclusion
The Act provides some peace of mind to employers who are trying to operate and return employees back to the workforce.  Still, the Act does not completely insulate or shield businesses and employers from potential liability.  The need to implement and enforce sound safety policies remains critical. By posting the Act’s Warning notices and following agency guidelines, employers can go a long way to reducing their exposure to COVID-19 claims and protect businesses.