Michael Diamond, managing partner of the cleaning company AffinEco

Legislature Debates Civil Liability for Cases of COVID-19

Connecticut is weighing joining 36 other states that have passed laws protecting businesses, nursing homes and universities from lawsuits for alleged violations of state-ordered COVID-19 protocols. 

State Rep. Craig Fishbein, R-Wallingford, ranking member of the legislature’s Judiciary Committee, is sponsoring a bill that would shield businesses, nonprofits and other entities from lawsuits if they have “substantially complied” with the COVID-19 safety guidelines issued by the Department of Public Health and the Office of the Governor. 

“What this bill would do is say, right at the outset of filing the suit, you can’t prevail because we followed the governor’s guidance,” Fishbein told CT Examiner. 

If passed, Connecticut would join 36 other states in enacting legislation that protects businesses from civil lawsuits related to contracting COVID-19.  

State Rep. Craig Fishbein, R-Wallingford

But State Rep. Matt Blumenthal, D-Stamford, warned that the bill would remove an important incentive for businesses to comply with the public health guidelines.  

Blumenthal said the civil immunity provision would only benefit businesses who were not complying with the COVID-19 regulations, since they would not have to worry about being held accountable. He said that existing laws are sufficient to protect businesses from COVID-related lawsuits. 

Blumenthal also said he was worried that businesses would use the civil immunity to protect themselves from workers’ claims that the company had been negligent in offering COVID-19 protection.

“We should be protecting employees, we should be making sure employers are doing the right thing,” he said.

According to Fishbein, however, the legislation does not prevent all lawsuits, nor does it offer immunity to businesses who were genuinely negligent or ignored public health guidelines.  

“The bill does not excuse actions by the business that were grossly negligent or [showed] woeful misconduct,” he said. “It’s not a blanket reprieve.” 

Federal and state approaches to liability

During negotiations over the federal COVID relief bill, passed in December of 2020, U.S. Senate Majority Leader Mitch McConnell and several other Republican legislators raised the idea of including in the bill a liability shield for businesses. That proposal never came to fruition. 

Instead, in the absence of federal guidance, as many as 36 states have passed legislation granting some variety of civil immunity to businesses. The states began enacting such legislation as early as May of last year, according to the American Bar Association

North Carolina passed a law providing immunity for essential businesses. Most of the states, including  Georgia, Montana and Utah, protected businesses from civil suits in the absence of “gross negligence.” 

Florida protected businesses that show a “good-faith attempt” to follow public health guidelines and required plaintiffs in such lawsuits to produce an affidavit from a physician attesting, in their belief, that a case of COVID was contracted due to an act or omission by the defendant. 

Georgia’s law allows a business to post a notice about the risk of COVID-19, which then passes the risk on to the customer. 

No consensus exists on how many lawsuits have been filed for COVID-19 related negligence. According to the Washington Post, a report released at the end of November by Lex Machina, a division of LexisNexis, counted 234 lawsuits alleging personal injury or wrongful death across the United States. 

The law firm Hunton Andrews Kurth reported a total of 9,594 COVID-19 related cases across the country since March of 2020 in its online COVID-19 case tracker. Of those, 171 cases claim exposure to COVID-19 at work or a lack of personal protective equipment, 56 claim personal injury, and 11 claim wrongful death, including exposure to COVID in a public place. In Connecticut, Hunton Andrews Kurth  count 114 COVID-19 related lawsuits, including two personal injury cases related to COVID-19 exposure or lack of protective equipment at work.  

A fear of liability

As Connecticut’s bill is written, a business sued in a COVID-related matter would be allowed to provide an affirmative defense demonstrating that the company had followed public health guidelines in place at the time of an alleged infraction.

According to Blumenthal, there have been almost no lawsuits against businesses in Connecticut for failing to comply with COVID-19 guidelines, and that such a lawsuit would be nearly impossible to win.

“To me the idea that there would be an onslaught of lawsuits from customers is far-fetched,” Blumenthal said during a public hearing on the bill on Monday. 

State Rep. Matt Blumenthal, D-Stamford

Fishbein acknowledged that it would be extremely difficult for someone to prove, for example, contracting COVID-19 from frequenting a convenience store.The real value of the bill, said Fishbein, would be to spare companies the high legal fees of defending against these lawsuits. 

Fishbein said it was impossible to say exactly how much a lawsuit like this would cost a business, but he estimated in the thousands of dollars. He said he couldn’t imagine an insurance company that would write a policy covering COVID-19 liabilities because of the risk involved.

“It’s the fear of being sued that this looks to dissuade,” he said. 

“The more certainty, the better” 

The legislation is supported by a number of colleges and universities.

In an interview with CT Examiner, George Synodi, vice president for finance & administration at the University of New Haven, said given that the governor had established rules for addressing the pandemic, the legislature should also provide a measure of protection from liability for following them, especially because pandemic insurance was impossible to find. 

“I think this is just intended to be an additional measure of safety and security,” said Synodi. 

Dr. Mark Nemec, president of Fairfield University, testified that colleges and universities needed some kind of “safe harbor” from civil lawsuits, given the opportunity for exposure on college campuses and the colleges’ role in testing students. 

“We essentially have become an instrument of public health infrastructure,” Nemec told CT Examiner. He added that the university had spent more than $10 million on testing, cleaning supplies, contact tracing and maintaining other safety guidelines. Synodi said that COVID- related costs this year at the University of New Haven amounted to about $11 million. 

Dr. Mark Nemec, president of Fairfield University

“I think this bill recognizes that we have gone above and beyond,” added Nemec. “The more certainty you have, the better.” 

Fishbein told CT Examiner that he’s particularly concerned about potential liability for cleaning companies responding to COVID-19. Fishbein said that he has been contacted by a few companies whose customers had sought assurances about their sanitation procedures. 

Michael Diamond, managing partner of the cleaning company AffinEco, testified that the risk of being sued over COVID-19 exposure could raise insurance rates so high that it would force them out of business. 

“We could sanitize a building today, and an hour later an occupant could come in and spread the germ again,” said Diamond. “To get sued for $100,000 over someone’s medical issues … I think a lot of companies will opt not to perform those services.”

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