A Sign of the Times: Georgia Businesses Receive COVID-19 Liability Protection

A Sign of the Times: Georgia Businesses Receive COVID-19 Liability Protection

By Ryan Sewell

Businesses in all industries are currently navigating uncharted territory. Many businesses have identified, mostly by necessity, that employees working in a remote environment is actually a viable option for their workplace. However, many still acknowledge that operating remotely does not allow them to function at their peak efficiency and isn’t a long-term solution. Whatever the circumstance, all of these businesses are trying to manage the delicate balancing act of reopening while being foremost committed to the health of their employees and their families. The CDC and DHS have published resources to review and mandatory minimum standards that must be met; however, there seems to be little guidance or consistency on what is expected from a business should the inevitable happen and they have a staff member or guest receive a positive COVID test. Some affinity organizations are providing sound advice but the ultimate responsibility and decision still lies with the individual business owner.

The good news is that there is some protection headed their way. State Congressional leaders recently passed SB 359 “Georgia COVID-19 Pandemic Business Safety Act,” a law that took effect with the Governor’s signature on August 5th. Contained within SB 359 is broad based liability protection for businesses by increasing the liability standard to gross negligence. The bill also specifically prescribes to businesses language that, when posted or published per the bill’s instruction, will provide a “rebuttable presumption of the assumption of risk.” In other words, unless a business can be found to be grossly negligent in their operation, that business will have increased legislative protection against lawsuits alleging the contraction or transmission of the virus at a place of business.

This legislation is a great first step to allowing business owners, employees and patrons, alike, the ability to feel safe while carefully and cautiously attempting to restore some sense of normalcy. With that being said, it still doesn’t address all of the concerns and questions facing many business owners. The disparity between what “should” a business do and what “must” a business do has never been greater. Furthermore, even with some legally inherent protections, it still doesn’t mean that a business will not face a lawsuit. Many insurance carriers are still maintaining their positions that for, both, loss of business income and liability or allegations of liability arising out of COVID-19, insurance coverage may be excluded. There are numerous active cases challenging these carrier interpretations; however, until such time as a decision has been rendered in these cases, business owners will have to continue to navigate these uncharted territories.

For example, a restaurant owner learns of a staff member that tests positive. It is currently not a requirement from the CDC or DPH for this owner to close his place of business. For the safety of his team and his patrons, he chooses to close for several days and sanitize his premises at a tremendous cost and a tremendous loss of revenue and at a time when revenues are still trying to catch up with accumulated expenses. As cases continue to increase, both symptomatic and asymptomatic, is that a viable option every time there is a positive case? How many shutdowns like this can a business sustain while revenues are already depressed? This is a dilemma faced daily in the restaurant industry but in every other industry as well.

Our state legislatures took a great step toward protecting our business owners and allowing our economy to re-open where it can safely do so and kudos to them. Although this legislation will tremendously help business owners, many will continue to experience roadblocks. It is important that where we can safely and responsibly do so, that we continue to support these businesses and understand that they are trying to do the very best for every stakeholder involved.