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A Guide to Re-Opening and Protecting Against Liability in the Process

On Friday, May 8, 2020, Alabama Governor Kay Ivey surprised some of us with an early revision to her “safer at home” order, and surprised us somewhat less with an attempted effort to provide some liability protections for employers who re-open. We have reviewed the orders and have some suggestions for employers who choose to re-open.

First things first. The revised “safer at home” order goes into effect Monday, May 11, 2020. Many businesses will be able to reopen, provided they follow limitations in the order. Recognizing that many businesses have been concerned about the potential liabilities of re-opening, the governor has also issued a proclamation in an effort to limit liability for health professionals and businesses. As discussed below, this proclamation may be of limited use, but there are certain steps that all re-opening businesses must take if they intend to seek any benefit from the limited liability provisions of the proclamation.

Before we get to the liability protections, here’s what will be permitted in Alabama come Monday, May 11, 2020—as provided by the order issued by the state health officer (SHO):

  • Non-work-related gatherings of any size may occur so long as 6-foot social distancing is maintained for persons from different households. This means places of worship can meet, but the Alabama Department of Public Health (ADPH) encourages implementation of its guidelines for such meetings.
  • Many sports activities can be held, but others are still prohibited.
  • Such athletic facilities as fitness centers, commercial gyms, spas, etc., can reopen, provided they follow the limitations in the SHO’s order, especially the 6-foot social distancing rule. The ADPH encourages such facilities to follow its guidelines for athletic facilities.
  • All retail establishments can open, provided they follow limitations in the SHO’s order. The ADPH encourages all businesses to follow its guidelines for safeguarding all businesses.
  • Close-contact service providers-such as hair salons, barber shops, and tattoo parlors-can reopen, provided they follow limitations in the SHO’s order. ADPH encourages these business to follow its guidelines for close-contact service providers.
  • People can visit the beaches on the Gulf of Mexico, provided they follow the 6-foot social distancing rule.
  • Restaurants and similar establishments can reopen, provided they comply with the limitations in the SHO’s order, which include the 6-foot social-distancing rule and employees having to wear masks. The ADPH encourages these businesses follow its guidelines for restaurants and bars.
  • Although hospitals and long-term care facilities remain closed, “elective” medical procedures can now be resumed. ADPH expects such facilities to comply with the infection-control measures issued by the Centers for Disease Control and Prevention (CDC) and the guidelines for reopening issued by the Centers for Medicare and Medicaid Services (CMS).

Since the SHO’s order contains many details and nuances, we encourage you to carefully read the section of the order that applies to your business or activities.

Liability Protections for Re-Opening Businesses

Now to Governor Ivey’s proclamation limiting liability and damages. As some of you may have noticed from our previous blog post, there are serious doubts that Alabama’s Worker’s Compensation Act will apply to employees who contract COVID-19 in the workplace. As the law is written, the contraction of a “disease” in the workplace is not a compensable event. While that may seem like a good thing for businesses worried about liability, it’s actually not. Worker’s compensation is a no-fault system of dispute resolution that was invented to prevent lengthy litigation and unlimited damages against employers by their employees. Workers’ compensation laws provide for simple procedures and calculated damages per injury type. These laws save money and time for businesses, providing them the ability to do business without worrying that injured workers will seek millions in damages for injuries in the workplace.

Without workers’ compensation protections, employer liability for COVID-19 claims would be unlimited: no damages caps, no abbreviated claims process, no protection from punitive damages. To address this concern, Alabama Senator Arthur Orr (R-Decatur) introduced a bill in the Alabama Legislature to provide for liability limitations and qualified immunity to businesses who follow public health recommendations. However, the Senate Pro Tem Del Marsh later announced that the Senate would not take up the bill this term.

Given the Senate’s refusal to take up the bill, Governor Ivey apparently took the matter into her own hands. Under her proclamation “a business, health care provider, or other covered entity shall not be liable for the death or injury to persons or for damage to property in any way arising from any act or omission related to, or in connection with, COVID-19 transmission or a covered COVID-19 response activity, unless a claimant shows by clear and convincing evidence that the claimant’s alleged death, injury, or damage was caused by the business, health care provider, or other covered entity’s wanton, reckless, willful, or intentional misconduct.”

For claims that already arose prior to the issuance of the proclamation, the Governor states that no liability should befall businesses unless there is clear and convincing evidence that available public health guidance was not followed.

The proclamation states that it does not affect any relief that may be available to employees under the Workers’ Compensation Act. That, of course, is a hedge. The Governor is holding out some hope that courts may construe the Workers’ Compensation Act to apply notwithstanding the exclusion of “disease” claims in the text of the law. To the extent the Worker’s Compensation Act does not apply, however, the proclamation would cover such claims.

Notably, this proclamation goes beyond addressing gaps in workers’ compensation coverage. The liability protections in the law apparently apply to customers of businesses as well, and that is very important to some in “close contact” industries and the restaurants of the state.

Governor Ivey’s proclamation goes on to state, purportedly, that any business who does have liability can only be sued for actual economic compensatory damages, and cannot be liable for mental anguish or emotional distress damages. The proclamation also states that businesses shall not be liable for punitive damages except in the event of wrongful death.

To put it mildly, it’s uncertain whether this proclamation will be upheld in court. The governor cites the Alabama Emergency Management Act as authority for her proclamation, but that law does not explicitly provide her the authority to eliminate liabilities. Furthermore, lawyers will almost certainly argue that this is an unlawful usurpation by the governor (a member of the executive branch of government) of the powers given to the legislative and judicial branches. To be sure, this is not normally the way liability protections are provided under our system of government; that is done through the legislative process.

Nevertheless, this proclamation at least represents a possible defense if a lawsuit were to be filed alleging that a business failed to adequately control the spread of the virus within the workplace. Businesses will certainly want to do what they can to receive these protections.

Critical Advice for Re-Opening Businesses

The key limitation on the governor’s limitation-of-liability order is that employers are only protected from liability to the extent they “reasonably attempt to comply with the then applicable public health guidance.” Businesses need to realize that the applicable health guidance is defined as “any emergency proclamation or order issued by the Governor of Alabama, or any order or guidelines document issued by the Alabama State Health Officer, concerning the proper means of preventing the spread of COVID-19.” The most recent such guidance is found in the State Health Officer’s May 8, 2020, order. That order provides that effective May 11, 2020—

[A]ll employers shall take reasonable steps, where practicable as work duties permit, to protect their employees by:

     a. maintaining six feet of separation between employees;

     b. regularly disinfecting frequently used items and surfaces;

     c. encouraging handwashing;

     d. preventing employees who are sick from coming into contact with other persons;

     e. facilitating remote working arrangements; and

     f. minimizing employee travel.

These standards represent the applicable public health guidance that all employers must abide by if they are to seek liability protections. However, the SHO’s order also states that businesses are “strongly encouraged” to read and implement the ADPH “Guidelines for Safeguarding All Businesses.”

The guidelines are most likely also a part of the minimum standards for businesses seeking liability protections. Note that under the guidance, employers are directed to screen all employees for symptoms (including by asking and documenting responses to specific questions specified in the guidance). The guidance also states that employers should permit employees to work from home “as much as possible,” and improve workplace ventilation if possible. Again, these are standards that are at least arguably required to claim the liability protections in the governor’s proclamation.

Note that the SHO’s order also contains mandatory public health guidance for retailers and close-contact providers and athletic facilities and gyms, including mandatory facial coverings, all of which must be followed to receive potential liability protections. Businesses should study these requirements carefully.

To give you the best chance limiting your business’ liability, I suggest implementing a “symptom checker” survey form. The form should contain simple questions, the responses to which would be used by the employer to assess eligibility for work. Employees should be required to update human resources personnel if any responses require updating. Having written evidence of compliance with the SHO’s recommendations will be critical in the event of any lawsuit and, regardless of whether the governor’s proclamation holds legal water, will assist in the defense of any lawsuit. I have prepared forms for employer usage; if you need advice on customizing a form for your business, please contact me.

Keep in mind that any symptom checker form would be a confidential medical document that must be maintained as a part of employee’s confidential medical record in accordance with the Americans with Disabilities Act. Furthermore, the symptom checker form is just an information-gathering tool. What an employer does with that information requires consultation of the latest CDC guidance, including standards for re-admission to the workplace.

Businesses and facilities that have to remain closed

Finally, bear in mind as well that the following businesses will have to remain closed, at least until May 22, when another order will be issued or the previous orders rescinded:

  • Senior citizen centers.
  • Elementary, secondary, post-secondary, technical or specialty schools.
  • Hospitals.
  • Long-term care facilities.
  • Night clubs.
  • Bowling alleys.
  • Arcades.
  • Concert venues.
  • Theaters, auditoriums, and performing arts centers.
  • Tourist attractions (including museums and planetariums).
  • Racetracks.
  • Indoor children’s play areas.
  • Adult entertainment venues.
  • Casinos.
  • Bingo halls.
  • Social clubs.
  • Athletic activities that involve participants interacting more closely than 6 feet or sharing sports equipment.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

Copyright 2020

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Saturday, 30 May 2020

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