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New year, same liability threat

New year, same liability threat

We’re quickly approaching the beginning of a new year, yet one of the biggest challenges of 2020 persists. A resurgent COVID-19 virus has infection rates, hospitalizations and deaths rising in New Hampshire and across the country. While we can’t legislate the pandemic away, we can legislate an end to one of the unnecessary and costly trials it has wrought — spurious lawsuits against businesses who are acting in good faith and following safety guidelines to protect their employees and work places from the virus.

Threats of legal action from those claiming to have contracted COVID-19 at a business or place of work is one of the biggest pandemic-related threats to local businesses and the jobs they create. In fact, some businesses are choosing not to reopen for fear of a lawsuit. While it remains to be seen whether these types of claims will prove successful, the cost of defending them and the increases to insurance premiums they bring are a danger to all businesses, particularly small businesses with fewer resources to defend themselves and absorb higher insurance rates.

The threat of COVID liability is not unique to businesses. Colleges and universities, primary and secondary schools, places of worship, and any space where the public gathers could see lawsuits from people claiming to have caught the virus there. New Hampshire’s Attorney General provided an opinion several months ago about employees who contract COVID-19 at the workplace. He said workers in such situations would need to file a workers’ compensation claim instead of going through the court system, and that businesses would be liable for such claims if the workplace presents a greater hazard for contracting the illness than outside of the workplace in the general public. While helpful, the Attorney General’s opinion doesn’t address the full range of potential liability threats against employers, particularly from students and parents in school buildings; worshipers at churches and synagogues; customers at restaurants and fitness centers; maintenance contractors and other visitors to workplaces.

The Business & Industry Association of New Hampshire (BIA), on whose board of directors I serve, has been fighting for a legal “safe harbor” to protect employers against these lawsuits since the beginning of the pandemic. BIA organized a working group of member attorneys (including me) last spring to understand the depth of this threat and identify possible solutions. One solution quickly emerged, passing legislation to create a legal safe harbor. BIA’s working group drafted language for such a law and offered it to the Governor and legislative leaders. Unfortunately, the session ended with no solution in sight.

To be clear, creating a legal safe harbor in New Hampshire would not provide blanket immunity for employers. Any business that is grossly negligent or recklessly disregards state and federal guidelines would be held accountable within the provisions of a safe harbor law, as they should be. The safe harbor would only protect businesses that are trying to do the right thing for its employees and patrons by following state and CDC health regulations to protect against the spread of COVID-19.

The current political climate in Washington makes it highly unlikely legal safe harbor protections for employers will succeed at the federal level. That’s why it’s important for New Hampshire to pass its own safe harbor legislation to protect employers and help them in their efforts to restore the state to economic health. New Hampshire would be far from alone in protecting businesses and jobs with a legal safe harbor. Sixteen states have already enacted safe harbor laws to protect employers against COVID-19-related litigation. Another eight states are actively considering it. The approach and the need in each state is the same: to prevent spurious civil lawsuits against businesses acting in good faith, while allowing lawsuits against willful, reckless, intentional, or grossly negligent misconduct to proceed.

With the new year comes a new legislative session in Concord. BIA and employers like Planet Fitness urge the newly elected state legislature to make safe harbor provisions a top priority. Employers need helpful action from public policy makers in the face of uncertainty and unprecedented economic challenges. This action requires no financial assistance, just some basic protections to help New Hampshire businesses and the jobs they create survive the pandemic.

Justin Vartanian is general counsel at Planet Fitness World Headquarters in Hampton and a Business and Industry Association (BIA) board member. The BIA, New Hampshire’s statewide chamber of commerce, produces this column monthly.


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