SC lawmakers to weigh legal protections for businesses reopening in COVID-19
South Carolina lawmakers are weighing whether to give businesses protection from losing lawsuits if their customers or employees contract the coronavirus in their establishments.
While supporters say the protections would give the business community enough security to feel safe reopening as the pandemic charges on, the legal community argues that the legislation is unnecessary, and that businesses already have those protections in almost every instance.
Supporters also say the proposal, expected to be introduced when lawmakers return to work this week, could help all South Carolinians by encouraging businesses — with the promise of legal protections — to better protect both staff and customers from COVID-19 by following the health guidelines set by government agencies like the Centers for Disease Control and Prevention and the S.C. Department of Health and Environmental Control.
The S.C. proposals are part of a growing trend around the country to give businesses cover from legal liability as they reopen in the ongoing pandemic. Some proposals from other states also include requiring workers to sign waivers saying they know the risks of catching the virus and won’t sue their employer.
Both the House and the Senate are considering their own proposals that would issue liability protection to businesses.
The House proposal is narrowly focused on exempting S.C. businesses that follow specific health and safety guidelines from legal liability in the event they are sued by someone who says they caught coronavirus in their establishments.
The goal, supporters say, is to encourage businesses to reopen by giving them an umbrella of safety, said S.C. Rep. Pope, a York Republican who headed up the House committee that is creating the legislation. To receive that safe harbor, businesses would need to follow health guidelines from the CDC or DHEC.
“What we would hope to happen, if that is the case, is it would give the folks who are trying in good faith to follow the existing rules an opportunity to start again with some sense of comfort, while recognizing that bad actors ... that don’t even make the effort to apply (safety precautions) would not receive the protection,” Pope said.
A similar proposal in the works in the Senate has a broader focus. The Senate is weighing extending liability protections for businesses, too, but also would address workers’ compensation issues and extend protections to businesses that pivoted to producing personal protection equipment.
Under the Senate bill, employees who contract COVID-10 would be able to apply for workers’ compensation, Davis said. Additionally, when first responders or health care workers apply for workers’ compensation, it would require businesses to automatically presume they contracted the virus while working, he added.
The bill would also protect businesses who typically do not produce medical equipment, but started to to address the shortage. If those businesses unknowingly produce a defective product, they would be protected from liability.
“We need to have a bright line to tell us what is expected of us,” said S.C. Sen. Tom Davis, a Beaufort Republican who is driving the proposal in the Senate, of the need for businesses to know how best to protect themselves, customers and staff.
Do businesses need the cover?
Efforts to protect businesses from coronavirus-related lawsuits have strong allies and opponents.
While advocates for businesses say the protections are necessary because owners are scared to reopen without additional protections as the state’s daily coronavirus case counts shoot up, lawyers have argued businesses already are afforded the protections they want under existing law.
Driving the effort in both chambers is the S.C. Chamber of Commerce.
“We want our economy to get back on its feet and to fully reopen,” South Carolina Chamber of Commerce president Ted Pitts said. “We’ve got to give business owners confidence.”
The chamber has worked with both the House and Senate to help shape their versions of the legislation, advocating on behalf of businesses across the state that are trying to reopen.
Business owners are afraid that they will become a target for lawsuits as they reopen and COVID-19 continues to spread, Pitts said. He claimed that across the country, the number of lawsuits related to the coronavirus is growing.
“Folks that say it isn’t a problem or this isn’t a problem that needs to be fixed are not business folks,” Pitts said.
Fighting the legislation is the S.C. Association of Justice, whose president Jay Ward called it “legislating for the sake of legislating.”
Ward explained that anyone who sues a business would have to prove definitively that they contracted the coronavirus at that specific place, a legal standard that is nearly impossible to meet in most cases.
“That’s an impossible burden that no one is going to be able to meet,” Ward said.
In court, a business would also currently defend itself by saying they took steps to protect their customers from contracting COVID-19. Both pieces of legislation being considered by lawmakers would require that same standard.
“We believe the law evolves to meet the circumstances of the coronavirus,” Ward said.
The difficulty of trying coronavirus cases would likely push lawyers away from filing that sort of lawsuit, Ward said. He added that he currently only knows of one COVID-19 liability lawsuit filed across the state.
Supporters say businesses will be safer
Supporters of the legislation say it could create an incentive for businesses to be better actors when it comes to following health guidelines.
Both the House resolution and the Senate bill would require all businesses to reach some level of compliance with CDC or DHEC COVID-19 recommendations in order to receive the legal protections. Pope called that incentive a “win-win.”
“We give you the opportunity with a set of guidelines to do better and keep people safer, and the reward is you won’t be exposed to liability,” Pope said.
Davis said his bill also would help clear up confusion over which regulations businesses must follow by spelling out which agency’s guidelines they are expected to adhere to.
“If you can go to some central place and say we’ve got to follow these protocols … it could have that effect of saying to businesses to say, ‘Look, if we want to avoid being sued, we have to follow those protocols,’ ” Davis said.
But, recent conversations over changing wording in the House resolution could soften the level of care businesses have to take, Ward said. While original drafts of the legislation focused on being compliant, lawmakers have discussed changing that language to require businesses to be “reasonably compliant.”
It is unclear what exactly “reasonably complaint” means, Ward said. For example, if there are five different points of guidance, and a business follows three of them, it is unclear if they would be given protection under the House resolution, Ward said. That would have to be decided by a judge or jury, he added.
“More recently, the term being proposed in the House is ‘reasonably compliant’ with that guidance, which is not a firm standard,” Ward said.
Limited time for legislating
Lawmakers hoping to pass the liability legislation face a steep climb.
One barrier is time. Lawmakers are back in town this week to take up emergency legislation. To pass the liability changes will require unanimous consent to move the proposal directly to the floor for consideration, and the bill may already have some legislative opponents.
House Minority Leader Todd Rutherford, D-Richland, said depending on the House resolution’s wording, extending liability protection to all businesses could provide the “opportunity to cover up bad acts,” something he would oppose.
Rutherford, a lawyer, also believes that businesses already have legal protection from COVID-19.
“Historically, it is very hard to prove where someone caught a communicable disease, and I don’t think that’s going to change in the near future,” Rutherford said.
“I think that these are the machinations of people who are trying to create an issue where there is none,” he added.
Davis acknowledged that it may be difficult to push legislation through, but said he hoped that the bill would offer something for everyone.
“The challenge is it has to be a bill that everybody agrees to because we’re only going to be in session for two or three days,” Davis said. “Its sort of like a Venn Diagram, when you’ve got all these circles and they overlap. Its the challenge. You’ve got to find the sweet spot.”
