Florida Passes Extensive COVID-19 Legislation Limiting Liability to Businesses
Earlier this week, Governor Ron DeSantis signed into law S.B. 72 – legislation providing Florida businesses with substantial protections from COVID-19-related lawsuits.
A Snapshot of the New Legislation
S.B. 72, "Civil Liability for Damages Relating to COVID-19," provides far-reaching civil immunity to individuals, businesses, educational and religious institutions, and government entities, among others, for COVID-19-related claims. In doing so, the new law creates substantial hurdles for potential plaintiffs. When filing a lawsuit for COVID-19-related damages, injury, or death, plaintiffs must now:
Plead their allegations with heightened particularity;
Submit an affidavit by a licensed Florida physician attesting to their belief “within a reasonable degree of medical certainty” that the plaintiff’s COVID-19-reated damages occurred as a result of the defendant’s wrongdoing; and
Show that the defendant failed to make a good faith effort to substantially comply with public health standards.
In addition to all of the above requirements being met, defendants considered to have made a good faith effort to substantially comply with public health standards are now immune from civil liability. Even in circumstances where a court initially determines that a defendant failed to make a good faith effort, plaintiffs must still show that the defendant engaged in gross negligence – a significantly higher burden of proof than ordinary negligence – by “clear and convincing evidence” in order to win at trial. As one might imagine, these requirements will place a significant burden on prospective plaintiffs.
To help limit liability, businesses should not only monitor and comply with all federal, state, and local COVID-19-related guidance and rules – particularly those published by the Centers for Disease Control and Prevention (CDC) and the federal Occupational Safety and Health Administration (OSHA) – but should also implement a detailed, documented compliance program that tracks CDC and OSHA guidance.
Further, the new law also imposes a narrow one-year statute of limitations period which requires that suit be filed from the later of: (a) the date of injury that forms the basis of the claim; or (b) the enactment of the new law. While the new legislation applies retroactively to claims that arose before the bill was signed into law, it does not apply to lawsuits that have already been filed.
One final thing worth pointing out is that the new law is silent as to workers’ compensation claims. What this means – at least for now – is that employees may still file COVID-19-related workers’ compensation claims against their employers. However, the new legislation protects employers from negligence-based and other tort claims related to alleged workplace exposure. As expected, workers filing workers’ compensation claims must still prove that their exposure occurred at work.
Conclusion
Given the far-reaching effects and potential due process concerns, it is expected that this new law will be challenged by the plaintiff’s bar and consumer advocates. Businesses should keep a close eye on any further developments. If you need guidance navigating through potential COVID-19-related liability, it is strongly recommend that you consult with an experienced business attorney to discuss your options moving forward.
The COVID-19 situation is ever-evolving, with new governmental measures being implemented each day. This article will be updated as quickly as possible as new developments arise. Readers should consult with counsel for the latest developments and updated guidance on this topic.
Rick Duarte is the owner of The Duarte Firm, P.A., where he focuses his practice on business law. He received his law degree from the Emory University School of Law and has been named a “Rising Star” in Business Litigation by Florida Super Lawyers for 2016 – 2021. Rick also serves as general counsel to emerging and medium-sized businesses, guiding clients through corporate governance, risk management issues, and strategic decisions where business and law intersect.
