As businesses attempt to navigate the post-COVID-19 landscape, one issue of concern is the possibility of claims for alleged exposure to the contagion being filed by both customers and employees. The concerns have been complicated by the often conflicting guidance or requirements placed on businesses by local, state, and federal governments or agencies.
While there is ongoing discussion at the federal level about legislation to provide some liability protections for businesses in certain circumstances, several states are stepping into the void and enacting legislation of their own. Louisiana has now followed Oklahoma, North Carolina, and several other states in enacting legislation that grants liability protections for businesses from coronavirus-related claims.
What the New Law Says
On June 13, Louisiana Governor John Bel Edwards signed into law House Bill 826, which grants liability protections to businesses from claims filed by both customers and employees related to COVID-19 exposure. The bill is retroactive to March 11, when Louisiana declared its state of emergency related to the coronavirus. It provides:
- A business isn’t liable for damages for injury or death related to actual or alleged exposure to COVID-19 in the course of business operations unless it “failed to substantially comply with the applicable coronavirus procedures established by the federal, state or local agency which governs the business” and the injury or death was caused by its “gross negligence or wanton or reckless misconduct.” If more than one set of procedures or guidelines applies to the business, it must only “substantially comply” with one of them.
- Planners of any kind of events (e.g. conventions, trade shows, sporting events) cannot be held liable for injury or death related to actual or alleged COVID-19 exposure “unless such damages were caused by gross negligence or willful or wanton misconduct.”
- An employee who contracts COVID-19 in the workplace has no tort (wrongful act) remedy against the employer unless the exposure resulted from an “intentional act.” In Louisiana, as in many states, this is a very difficult threshold for an injured employee to meet.
Warning: No Blanket Immunity
While the law will come as welcome relief to businesses already facing other challenges, it’s important to note the protections don’t create blanket immunity for businesses from COVID-19 claims. You should still anticipate the possibility of such claims and document the actions you’re taking to keep employees and customers safe.
Likewise, you should document the source of the recommendations you’re following in implementing the procedures—e.g., the Occupational Safety and Health Administration (OSHA) and the U.S. Centers for Disease Control and Prevention (CDC).
Chris Mann is a partner in Jones Walker’s labor and employment practice group. He can be reached in New Orleans at cmann@joneswalker.com.