By Jeff McIver

We’ve all heard the expression, “There’s no point in closing the door after the horse has already left the barn!” It’s a warning to take action before it’s too late. Preventing a problem in the first place is clearly the ideal solution. Yet the legislature has demonstrated several times it’s content to wait for a problem to manifest itself before taking steps to implement an obvious fix.

I’m talking about several legal safe harbor bills in both the NH House and Senate that have been “retained.” This means the legislature will hold onto the bills over the summer and into the fall with the possibility that they may (or may not) act on them next year.

The three bills that focus on this challenge share one thing in common: each provides limited immunity against lawsuits from anyone claiming he or she contracted COVID-19 at a place of business, church, school, or college campus. This protection would only apply to enterprises who are “doing the right thing” by making good faith efforts to comply with federal and state health and safety guidelines. The very real exposure to unwarranted litigation is a top concern for businesses across the state like mine. The Mountain Club on Loon has done and continues doing everything we can to ensure our enterprise is safe for employees, guests, contractors, and others, while remaining open during the pandemic. A spurious lawsuit against us could cost as much as $50,000 to defend against. That’s money that would be better utilized keeping our people employed.

Unfortunately, the legislature has decided to put all three safe harbor bills on the back burner for a year arguing there haven’t been any lawsuits filed in New Hampshire, so where’s the harm? But that’s like advising people to hold off getting car insurance until after they have an accident or avoiding homeowner’s insurance until after a house fire. It doesn’t make sense.

If no COVID-19 related lawsuits are ever filed in New Hampshire, then passing one of these bills now will do no harm. But if such lawsuits are coming, and it’s likely they will since over 270 have been filed across the country, then the law will provide valuable protections for employers, many of whom are already in a pandemic-induced struggle to survive.

Trial lawyers fought hard against enacting safe harbor legislation. Without it, lawsuits can be freely filed against enterprises of all kinds, even those doing everything possible to mitigate the risk of COVID-19 infection. Many enterprises, like mine, have gone above and beyond recommended health and safety guidelines. And even though we’d likely win if sued, there’s a cost. Fifty-thousand-dollars, $30,000, $15,000…whatever the amount, we’d be forced to choose between just paying the claim or spending two to three times as much to defend against it. That’s a lose/lose situation for any enterprise, for-profit or non-profit.

Opponents of the legislation claim a legal safe harbor would allow businesses to reduce their protections during the pandemic. One attorney even said, “The only people that can be sued are essentially people who have licked the face of every customer.” This makes for a great soundbite, but it’s simply not true. In the plain language of the safe harbor legislation, any business that reduces their protocols below the standards set by state and federal guidelines is not protected and can be sued if someone catches COVID-19. That’s as it should be.

That wasn’t the only misleading information opponents of the legislation provided. They claimed creating a legal safe harbor is really about protecting insurance companies. This ignores the fact that most insurance policies have exceptions for infectious diseases. If a business is sued over a COVID-19 infection, the business itself is on the hook for the entire cost unless their policy includes such protection. Most enterprises never anticipated a global pandemic and therefore do not have such coverage. Therefore, rather than protecting insurance companies, the safe harbor bills the legislature is parking for a year specifically protect enterprises of all sizes, including small businesses whom legislators so often claim to support.

Lack of safe harbor legislation is already affecting New Hampshire enterprises. A business in Hanover decided it wouldn’t reopen, partly due to concerns over being sued. A church in Claremont suspended an addiction recovery program out of fear of being sued over COVID-19.

After the November election, I expected the newly elected legislature would be more willing to help address challenges facing employers like Mountain Club on Loon. Instead, they’re poised to put a top business concern in limbo for a year. Delaying safe harbor protection will likely mean it’s too late for many businesses when the lawsuits start coming. The Business & Industry Association, on whose executive board I serve, has led a coalition of nearly three dozen chambers of commerce and trade associations across the state, representing tens of thousands of employers, pushing for enactment a legal safe harbor. They’ve been trying to accomplish what 23 other states have already achieved – protecting employers against spurious lawsuits. The NH legislature should close the barn door while the horse is still inside. Why wait?

Jeff McIver is president & general manager of the Mountain Club on Loon Resort and Spa.

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