Business COVID Liability Protections to Be Debated in Florida This Session

Posted in COVID-19, Legal Alerts on January 15, 2021

With Florida coronavirus cases surging beyond last spring’s case numbers, the Florida Legislature is preparing to debate COVID-related lawsuit immunity for businesses during the 2021 legislative session. Many of Florida’s businesses have been hit hard after the pandemic forced them to shut down or significantly decrease their work output, on top of now being required to enact COVID-related precautions to keep workers and customers safe. Many businesses fear being hit with lawsuits blaming an employee or customer contracting the virus on business owners and operators. Employees are also worried about working during a deadly pandemic and may not know what to do if they contract COVID while at work. The issue is complicated and will require nuanced discussion on how to handle this unprecedented event.

For months, Florida’s business lobby has been pursuing legal protections for businesses dealing with COVID-19 and has joined calls to Congress to pass a civil immunity package that would give businesses immunity from lawsuits related to the virus. While this has not been successful at the national level, Florida Senate President Walton Simpson has indicated that he is in favor of passing state-level immunity measures quickly after the legislative session convenes in March of this year. Simpson recently stated, "I don't think you ever, in any condition, put a blanket statement that no one would have any liability associated with COVID, but I think if you've made the right attempt to follow the CDC guidelines, then that's something that we should take a look at.”

Over two-dozen states have passed some form of legislation limiting employee and customer lawsuits that blame a business for an individual contracting the virus. With Florida’s 2020 legislative session ending right as the pandemic began surging, the state has not had a chance to pass similar legislative measures. This year, the Florida business lobby’s heavy-hitters are making tort reform, potentially including COVID liability protections, a top priority. Senator Danny Burgess has expressed that Florida businesses need protection from “opportunistic” and frivolous lawsuits. Burgess says, “Businesses have been through hell, employers, employees have been through hell, they have been brought to their knees. And as they’re trying to get back on their feet and get their doors back open, they don’t need to be looking over their shoulder.” Burgess also agreed that there has to be a balanced approach to business protection and that bad actors should still be held responsible for egregious actions.

Legislation has not been officially filed, but Burgess is expected to use a draft bill promoted by the Florida Justice Reform Institute as a starting point for the debate. That bill provides significant liability exemptions for “essential businesses.” Other businesses would also be protected from employee claims if those businesses can prove they have followed applicable safety precautions. The bill would also detail what requirements need to be met to successfully file a COVID-19 related lawsuit in the future, including the need to establish gross negligence or intentional conduct on the part of the business owner, raising the burden of proof torequire “clear and convincing” evidence to sustain a verdict and establishing a one-year statute of limitations for COVID related liability litigationrather than the four-year limit that typically applies to negligence actions under Florida law.

On the other side of the debate is Florida’s trial lawyer lobby and a significant number of Florida’s legislator. The trial lawyer lobby is expected to oppose any liability protections for businesses despite the concerns that shielding business owners from potential lawsuits could encourage them to make poor decisions favoring increasing revenue over safety.

The online COVID-19 Complaint Tracker database shows that there has not yet been an avalanche of COVID related liability lawsuits. In fact, there have only been 483 such lawsuits filed in Florida, with the bulk of that number not yet heard. Many of these will be dismissed. Pandemic related claims are very hard to prove, which has prevented high numbers of lawsuits from being filed. The plaintiff’s burden of proof is just too high when having to prove causation on the part of a business owner. Contact tracing has thus far not been accurate enough to pinpoint where and when every case of coronavirus was contracted. To prove that an employee or customer contracted the virus on the business property will be incredibly difficult, and in addition to this difficulty, the putative plaintiff would also have to prove that the owner was negligent or guilty of intentional misconduct in its actions. Consumer advocates have urged the legislature not to remove the incentive for business owners to maintain a safe work environment by not barring  COVID liability lawsuitsin their entirety.

William Large, the president of the Florida Justice Reform Institute, views the 483 COVID lawsuits as evidence that Florida has become a fertile ground for such suits. Large is now the co-chair of the Restore Economic Strength through Employment and Tourism task force, also known as “RESET.” The task force includes many powerful business owners and groups that share his concern that pandemic related lawsuits could reach new numbers this year. “The goal of the RESET task force is to prevent a crisis resulting from an onslaught of litigation tied to novel claims that a business exposed them to COVID-19, or failed to take adequate action to guard against the risk of exposure,” Large said. The task force surveyed Florida business owners and found that while the majority had not yet faced a lawsuit related to the virus, some reported concerns about potential COVID-related lawsuits. The survey also found almost all business owners were concerned about the lack of consistent guidelines for creating a safe work environment while  keeping their businesses open. They did not know which organizations to follow of the state, counties, CDC, and OSHA when it comes to health and safety guidelines since there is so much conflicting information.

The Florida Legislature will be in regular session starting this March while many committee meetings are being held starting this month. Expect this topic to be discussed at great length over the coming months.