YOUR BUSINESS AUTHORITY
Springfield, MO
YOUR BUSINESS AUTHORITY
Springfield, MO
A year dubbed unprecedented in many ways has led to a new concern for employers, employees and customers alike – exposure to the coronavirus at places of business. In turn, the issue has led to new reason for litigation and even potential state-level legislation.
Since the COVID-19 pandemic began in the United States around March 2020, businesses have been juggling the ever-changing environment of what it means to protect their employees and customers from exposure to the virus while they continue to operate.
“We’ve had to focus on a lot of COVID-related issues for employers because that’s been a hot focus for our clients,” said Paul Satterwhite, attorney with Spencer Fane LLP and head of the firm’s national labor and employment practice group. “That’s been our last 11 months – just dealing with and addressing on a daily or every other day basis.”
Satterwhite said businesses have been dealing with myriad issues during the pandemic: There’s the face mask protocols, employees working remotely possibly for the first time and complying with state and federal mandates, such as the Families First Coronavirus Response Act which requires certain employers to provide paid sick leave if family members have COVID-19.
No issue in Satterwhite’s practice experience has been so disruptive for employers, he said, in part because of continuous changes in the rules.
“At the beginning, it was like drinking out of a firehose – there was some sort of new guidance coming out every day it seemed,” Satterwhite said.
One concern is the possibility of a lawsuit or other legal action against a business if an employee or customer is exposed to COVID-19.
As of mid-February, more than 1,600 lawsuits nationwide, including two dozen in Missouri, have been filed against employers due to alleged labor and employment violations related to the coronavirus, according to data compiled by San Francisco-based law firm Littler Mendelson PC.
Greggory Groves, an employment attorney with Lowther Johnson Attorneys at Law LLC, said the type of legal action would vary based on whether an employee or customer is exposed.
“An employee who gets COVID would have to proceed under workers’ compensation – it’s just like getting hurt on the job,” Groves said. “On the other hand, if you walk into a Walmart and catch COVID, then the standard in most cases is just like a slip and fall.”
Both Groves and Satterwhite were unaware of any cases relating to COVID-19 exposure in the Springfield area.
State-level protection
A bill under consideration in the Missouri Senate would add a level of protection for businesses potentially facing a COVID-19 exposure lawsuit.
Senate Bill 51 would establish protections related to COVID-19 in three areas: exposure, medical liability and products liability.
The bill would protect individuals or entities engaged in business from being held liable in any exposure action unless the plaintiff can prove the defendant engaged in “reckless or willful misconduct that caused an actual exposure to COVID” or the exposure caused personal injury to the plaintiff. It also would protect health care providers from COVID-19 medical liability action without gross negligence, and product manufacturers or sellers from liability without gross negligence, as long as they did not make or sell the product before the pandemic began.
“We had to have food stores open, businesses had to survive and do what they could do,” said SB 51 co-sponsor Sen. Bill White, R-Joplin. “This bill gives them protection unless they did something reckless or intentional.”
White originally sponsored similarly written SB 42, but the bill was combined with legislation proposed by Sen. Tony Luetkemeyer, R-Parkville.
SB 51 changes the standard of what qualifies as fault for the business in question, requiring plaintiffs to prove gross negligence or recklessness, instead of basic negligence.
Groves compared the levels of negligence to a slip-and-fall lawsuit. If a customer slips and falls on a wet floor because it was not marked, but the incident is a one-time issue, that is negligence. If the store has had a continuously wet floor due to an unfixed leak that hasn’t been addressed, that is gross negligence, he said.
In the case of COVID-19, if a business does not require masks or enforce social distancing, and has poor disinfecting procedures, there may be a case for gross negligence.
Hard to prove
But it isn’t quite that simple.
“Frankly, these lawsuits are going to be very tough to prove,” Groves said. “You still have to prove the negligence caused your damage. You don’t have to prove beyond a reasonable doubt, you just have to prove more likely than not. But in this day and time, you can catch COVID in any number of places and trying to prove that it’s more likely than not you caught it at one particular place versus somewhere else is tough.”
Satterwhite said he is unsure if being able to simply prove exposure to COVID-19 would be enough or if plaintiffs would need to prove they actually contracted the disease because of the negligence.
Both Springfield attorneys doubt the necessity of the state legislative protections based on the level of COVID-19 lawsuits filed so far.
White said the bill has been proposed in order to protect Missouri businesses from lawsuits without gross negligence, in the hopes it would allow and encourage them to remain open during this pandemic and any future issues.
“The next time we have something, we want these people to do the same thing again. We want them to step up, keep their stores open, go into work,” White said. “If we don’t take care of them, why are they going to do it next time? They put themselves at risk.”
In his Jan. 27 State of the State address, Gov. Mike Parson said he hoped the COVID-19 liability protection bill would be the first piece of legislation on his desk. The bill also is a top priority for the state and Springfield chambers of commerce.
At least 14 states including Kansas, Arkansas and Iowa have enacted liability protections for many businesses from COVID-19 lawsuits, according to the National Conference of State Legislatures. Many other states are considering similar legislation in 2021, but no federal legislation has been passed.
As of press time, SB 51 was on the Missouri Senate’s informal calendar, awaiting a third reading and vote to send it to the House of Representatives. White said because the bill has an emergency clause – allowing it to go into effect right after passage – it needs a super majority vote in the Senate.
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