July 9, 2020
By Katie Nussbaum, as printed in the Savannah Morning News
As restaurants and other businesses continue to struggle with the daily changes and challenges brought forth by the COVID-19 pandemic, a bill that passed during the last hours of the state legislative session on June 26 could provide extra protection when it comes to virus-related legal claims.
Senate Bill 359 aims to provide for certain immunities from liability claims regarding COVID-19. Gov. Brian Kemp has until August 5 to sign the bill into law. The bill would cover all claims accruing before July 14, 2021.
In recent weeks dozens of Savannah businesses have announced temporary closures on social media after customers or employees have tested positive for COVID-19 or come in contact with someone who tested positive.
Wade Herring, partner at Savannah-based law firm HunterMaclean, said he truly believes that businesses are working hard to do the right thing during this time.
“I think that has been the primary motivation, not fear of liability. Businesses that have shut down have done so even though the (The Centers for Disease Control and Prevention) guidance for the guidance from Governor Kemp’s various executive orders would not require that,” he said.
“They’re trying to do the right thing, both by their employees and by their customers and the public at large.”
Passed largely along party lines with republicans supporting it and democrats voting against it, by the State House of Representatives 104-56 and later by the Senate in a 34-16 vote, the immunity bill covers both businesses of all kinds and individuals and provides immunity for COVID-related claims except in instances of gross negligence, willful and wanton misconduct, reckless infliction of harm or intentional infliction of harm.
“It’s not that the business, the individual or the business owner can do zero, you have to do something, but you’re immune unless the claimant can show basically gross negligence or intentional misconduct,” Herring said.
Herring said in terms of liability risks a lot of them are vis-à-vis employer and employee and the immunity bill doesn’t change things like Occupational Safety and Health Administration violations, workers’ compensation claims or age discrimination.
When trying to map out the best plan for their business Herring said it comes down to what lawyers refer to as the “Standard of Care,” which in this situation would be the patchwork of CDC guidance, state orders and local order, all of which continue to evolve.
If these things are ignored then the business will have a problem, he said.
“For example, if a business disregards the maximum capacity rules that are now in place with COVID or if a business disregards social distancing rules or within the City of Savannah if a business disregards the face mask order, if I were on the claimants side I would argue, you didn’t do those things therefore that’s gross negligence or intentional infliction of harm,” he said.
“That’s going to be the argument. Now how judges and juries rule on that, who knows, but if I’m advising my clients, my advice is going to be let’s not find out, let’s try to do our reasonable best and that’s the standard, reasonableness, let’s do our reasonable best to comply with all of those things.”
Under the bill, businesses can be further protected by posting signage that states that patrons assume any risk by entering the facility. These waivers can also be printed on tickets, receipts or wristbands.
“If you give people notice that they’re assuming the risk then the business gets additional defense of assumption of the risk, which is pretty powerful,” Herring said.
Herring said he remains concerned that people will be looking for someone to blame when it comes to COVID-related claims.
“There’s pent up frustration and anger to hold somebody responsible and so there’s an economic component to this, is there anyway to make money on these claims, but I think there’s going to be something more to it than that,” he said, adding that he thinks there will also be an emotional component.
“Right now we’re all in the middle of this trying to figure it out, but on the other side of this people are going to be angry, frustrated, disappointed and hurt. They’re going to look for somebody to blame and I don’t think it’s necessarily big powerful corporations that’ll be the most vulnerable. I’m concerned about medium sized businesses and smaller sized businesses.”
Tracing the virus
There’s also the question of proving exactly where you picked up the virus. Herring said he believes it would be difficult to prove where you contracted COVID-19 and Dr. Lawton Davis, Coastal Health District Director agrees.
“Unless you have the ability to do genetic sequencing of the virus itself, and that exists, it’s just not routinely done,” Davis said.
“It would be very difficult to prove that you got it at Olive Garden as opposed to that time when you had one of your friends is asymptomatic and takes care of himself, but you went out and had a drink or two and he never does get sick or get a test, but actually he had it and that’s where you got it and that’s where you got it and you didn’t get it at the restaurant.”
The CHD does try to contact as many people as possible after being notified of a positive test through contract tracing. After being notified of a positive test Davis said they then verify the positive test result with the person who is positive. Then they begin a case investigation interview, which consists of questions pertaining to symptoms, where they work, places they’ve been and who they’ve been in close contact with.
If the person has symptoms they work to determine when they began in order to try and pinpoint the time when they became infectious and hone in on who may have been in close contact with the person during that time, Davis said.
“We hope that they will be cooperative with us and tell us the people they can identify that might be close contacts, defined generally as someone who they’ve been in close, personal contact, within six-feet for a period of 10 to 15 minutes,” he said.
The CHD then moves to interview the people identified as close contacts and repeats the interview process with them, Davis said, adding that the identity of the positive patient isn’t revealed.
“Once we’ve talked to them and gotten our answers from the contacts we advise them about either quarantine or isolation depending on their symptom status and of course on the case we also advise them about isolation protocols,” he said.
Notifying larger entities such as businesses that the person who tested positive may have spent time at varies by situation, Davis said.
“Typically if somebody is walking through the grocery store and didn’t huddle up with somebody in there and they’re just walking along normally, anybody in there would have only had a very brief exposure to them and so they would not be considered a significant exposure,” he said.
Restaurants also vary, he said.
“If they went to a restaurant and were at a table with three, four or five of their friends for an hour and a half, those people would be close contacts and probably the waiter or waitress would be also,” he said.
“Those things are dependent upon what we learn as we do our interview.”
Davis said when the pandemic first began people were willing to provide more details when it came to contract tracing, but now he believes people are suffering from a bit of COVID fatigue, which coupled with a number of scams going around have made people leery of answering a phone call from a stranger.
Davis said the health department will never ask you for personal information such as your social security number or financial information, although they may ask you to verify your birth date to confirm your identity and they have no means of electronically tracing you other than calling you on the phone.
“It really is helpful to us when people are cooperative. At the moment we still don’t have a vaccine, we still don’t have a medicine that effectively treats its, so the only thing we do have that works is social distancing, wearing a face mask, good public health hygiene, like washing your hands, and then case investigation, contact tracing and the appropriate use of quarantine and isolation,” he said.
“Those are the only things that we have that work.”
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