Over the past year, the big story has been the search for vaccines to protect people from Covid-19. You can’t vaccinate a business, but Arizona businesses are now protected from liability related to Covid-19.

Arizona has given businesses a qualified immunity for their Covid-19 response.

On April 5, 2021, Governor Ducey signed SB 1377 into law, which creates a statewide Good Samaritan-esque law that protects against civil lawsuits over an injury or death that “relates to a public health pandemic.” Under the new A.R.S. § 12-515, any person or “provider” (meaning all healthcare providers, landlords, businesses, employers, schools, nonprofits, religious institutions, and governmental entities) that acted “in good faith” to protect someone from Covid-19 will be functionally immune from lawsuits over a failure to protect that person. Its companion law, A.R.S. § 12-516, broadly protects healthcare providers from lawsuits based on injuries directly caused by Covid-19, and also against indirect injuries arising from the delay of non-Covid procedures or the failure to provide treatment altogether, so long as those services were withheld because of the pandemic. Both laws go into effect immediately and apply retroactively to March 11, 2020.

It’ll be very difficult for a lawsuit to circumvent these new business protections.

The only people who are explicitly not protected by this act are those who acted with “willful misconduct or gross negligence.” Generally speaking, that legal standard means that the law doesn’t protect you if you acted recklessly or intended to hurt someone. But the act goes even further by including a presumption that each person was acting in good faith (and is thus protected), so long as they were following “reasonable policies.” And then even if there is evidence of reckless or intentional behavior, this law requires a plaintiff to prove that level of mental intent by “clear and convincing evidence,” which is a harder standard to meet compared to what’s typically used in civil litigation. Put simply, this means that only the most egregious or well-documented claims will survive a courtroom challenge.

Covid-related lawsuits are still coming.

Laws like this are controversial. The day after Arizona’s act went into effect, New York repealed a similar law that protected nursing homes from Covid-related lawsuits. What’s certain is that Covid-19 will remain a major source of litigation for years to come, with suits filed against schools, landlords, employers, supermarkets, churches, doctors, and hospitals over the short- and long-term effects of the disease. The question of what constitutes a “good faith action” was already going to be a hotly contested issue in courts, but now that “good faith” could mean “full immunity” in Arizona, we can expect that this concept will be front and center in every suit.

Companies shouldn’t assume that they’re safe thanks to this law. While the act was written to sweep very broadly, its protection isn’t absolute. In addition to those acting recklessly or intentionally, it appears that businesses who took no Covid-19 precautions whatsoever may also still be open to civil liability, given that the statute says that it only protects “a person or provider that acts in good faith”. Can inaction be action? (The answer is “sometimes”).

So is my business safe from being sued under this new law?

Any litigator worth their salt will tell you that there’s no way to completely protect yourself from being sued; our court system is intentionally designed so that it’s easy to file a lawsuit. If the suit is clearly meritless, or if you qualify for protection under laws like this one, usually your attorney can get the case dismissed early on. So the question really becomes: How do you best situate yourself now so that you can show that your business qualifies for this immunity?

Based on our 70+ years of experience, we can make some predictions about what you can do to help yourself meet this law.

• Starting now, you should identify and archive emails and notes that help show that your business responded to Covid in good faith. Ideally, you’ll have documents you can point to from throughout 2020 and through today that show that your company was staying up to date on developments and expert recommendations. This could be especially important for essential businesses that stayed open throughout 2020.
• Mask wearing will likely be a focus in litigation. For the first few months experts didn’t believe that masks were necessary, but that advice changed as we learned more about the virus. How did your company react, and does it require masks today? What did it base its decisions on?
• Vaccines will also be a contested issue. Is your company asking (or requiring) employees to get vaccinated? Are you making return-to-work decisions based on vaccination levels? What policies has your company put into place on these issues?

The best time to review your company’s decisions and re-evaluate its policies is now, before you’re tied up in litigation.