Liability protection from COVID-related claims was easily won in Alabama. Gov. Kay Ivey granted it for businesses in an executive order she signed in May.
“I want to do everything within my authority to protect businesses as Alabama’s economy gets up and running again,” Ivey said then. “As we resume operations, the very last thing a business owner needs to worry about is a frivolous lawsuit from responding to COVID-19.”
That was a relief to Jacob Shevin, president of Home Furnishings Association member Standard Furniture. The retailer, founded in 1912, has 13 stores in Alabama and one in Tennessee.
Shevin is a member of HFA’s Government Relations Action Team and also immediate past chairman of the Alabama Retail Association, which pushed for liability protection. Without it, he said, the uncertainty regarding potential exposure to the virus could have stopped businesses from opening their doors.
“Businesses in all industries and areas of the state are facing major financial damages from the sudden, all-consuming effect of coronavirus which could take years to recover from,” the Alabama Retail Association said. “These businesses, especially those in the small business community, cannot afford to be exposed to additional financial injury incurred through costly lawsuits resulting from an unprecedented pandemic and circumstances outside of their control.”
Businesses must make safety a priority
Gov. Ivey’s order, however, didn’t offer blanket immunity to businesses. “Let me be clear,” she said. “This in no way shields them from serious misconduct. If someone knowingly abuses the public during a time of crisis, they should be held accountable and prosecuted as such.”
The greater problem with Ivey’s order is that it will expire when her declaration of a state of emergency expires. Then it will be up to the legislature to enact liability protection for a longer term. Shevin, still working with the Alabama Retail Association, thinks a deal will be reached. The main opposition comes from trial lawyers, he said.
That’s an obstacle at the federal level, too. U.S. Senate Republicans have proposed broad liability protection, which the HFA supports. Democrats, backed by trial lawyers’ groups, don’t agree – or want legislative concessions in return.
So, “the states are leading the way,” according to Honore Hishamunda, a labor and employment attorney for Seyfarth Shaw LLP in Atlanta. Tennessee recently followed Georgia as the latest states to enact liability protections for their businesses. But, as in Alabama, “protection” is far from absolute. It requires businesses to make good-faith efforts to comply with local, state and federal guidelines. If they do, they should be shielded from unwarranted claims of injury from COVID-19 exposures.
Hishamunda warned that, while liability protection laws are helpful for businesses, they won’t stop plaintiffs from filing lawsuits. Nor do they preclude workers’ compensation claims.
Uniform liability protection is the best approach
HFA urges members to call on their state representatives for liability protection if it hasn’t already been granted. Still, congressional action is preferable. Last month, 22 state attorneys general wrote to Senate leaders to plead for a federal solution.
“As you are probably aware, states across the country have taken steps to address the need for timely, targeted and temporary civil liability protections in light of the pandemic, but the need for a uniform national baseline of liability protection still exists,” the letter said.
Talks in Washington between the White House and House Democrats stalled a month ago, but there are signs they will resume soon and include liability protection.
State laws vary widely, lawyers for Holland & Knight wrote recently:
“Nearly every state law preserves liability for certain types of extreme or intentional conduct, most commonly for willfulness, recklessness and gross negligence. However, the precise scope of each immunity exception varies by state. For some states, such as Iowa and Kentucky, the exceptions vary by type of entity or individual covered. Other state laws provide a safe harbor for covered entities or individuals who comply, or make a good-faith attempt to comply, with applicable public health regulations or guidance.”
Implement the proper safety practices in your store
As community spread of the virus continues across much of the country, schools, colleges, bars and other places where infections have been identified have been forced to close again. Legal actions are likely to follow. Those problems should not happen in furniture stores. But managers must implement proper practices for social distancing, use of gloves and masks, cleaning and disinfecting and monitoring employees’ health.
The HFA and other furniture industry groups have formed the Alliance4Safety to provide information for maintaining a safe environment for employees and customers.
Furniture stores must operate safely, but they deserve protection from frivolous legal claims.
HFA members should call or email their senators and representatives in Congress and ask for liability protection. They can find contact information here.
Not a member of the HFA? Add your voice to ours as we advocate for the furniture industry.