North Carolina has enacted two new laws providing broad immunity against COVID-19 transmission claims to essentially everyone in the state, unless they were grossly negligent or acted intentionally (Session Law 2020-89):
“No person [which is defined to include individuals, corporations and other entities] shall be liable for any act or omission that does not amount to gross negligence, willful or wanton conduct, or intentional wrongdoing.”
And to avoid any confusion over whether that includes the operators of community swimming pools, Session Law 2020-90, p.10 singles out and specifically protects pool owners and operators from COVID-transmission claims, again unless they were grossly negligent or engaged in wanton or intentional conduct.
As noted in prior alerts, North Carolina law already provided limited immunity to some businesses including “essential businesses,” “emergency response entities” and health care providers. Under these new laws, signed July 1 and 2, 2020 by Gov. Roy Cooper, many more may now claim immunity from suit.
This limited immunity is not a silver bullet.
Businesses (and people) are not immune from claims based on gross negligence or intentional conduct. And deciding what constitutes gross negligence or wanton/intentional acts will be up to courts and juries. Almost certainly, willful violation of existing guidance and directives (e.g., occupancy, distancing, masks) would give a would-be plaintiff plenty of material to try to argue around immunity.
This means, of course, that businesses (and people) must continue to take great care to follow evolving guidance and directives on distancing, personal and workplace safety, and if possible, document their efforts. This includes following state and local proclamations and ordinances on wearing masks, for example.
Who is Entitled to Immunity?
All “persons” are now entitled to limited immunity from COVID transmission claims. “Person” is broadly defined and includes basically everyone and everything: individuals, corporations, nonprofits, trusts, partnerships, sole proprietorships, government, government agencies, instrumentalities, or any other legal entity. This definition of “persons” goes beyond existing immunity laws, which provided limited immunity to some but not all businesses and people in North Carolina. “Community pools” is also broadly defined to include any privately owned community swimming pool including those at an apartment complex or neighborhood. Owners and operators of community pools, and their agents, are also entitled to limited immunity from COVID transmission claims.
What is the Scope of Immunity?
The immunity is not absolute. First, it does not prevent or preclude employees from pursuing remedies under North Carolina’s Workers’ Compensation Act. Second, it is only for COVID transmission claims, i.e., claims that the business, person or pool caused a would-be plaintiff to contract COVID-19. Third, there is no immunity for gross negligence, recklessness or intentional infliction of harm.
To get around this immunity, would-be plaintiffs will almost certainly include allegations of gross negligence, recklessness and intentional wrongdoing in their complaints, forcing businesses, persons and pools to defend those claims. The best defense would be to demonstrate compliance with applicable guidelines and standards of care. For businesses, documentation will be key.
Is the Immunity Limited to a Particular Time Period?
Yes. “Persons” are entitled to immunity for claims arising no later than 180 days after North Carolina’s state of emergency declaration (Executive Order 116) is rescinded or expires. Interestingly, owners and operators of community pools are entitled to immunity a full year after that occurs.
As of this writing, we are aware of no immediate plans to rescind North Carolina’s emergency declaration, so this immunity would apply to acts occurring now and likely through a full reopening of the economy.
What Should Businesses Do Now?
Provide notice. With respect to any premises within their possession, custody or control, the new immunity law requires businesses to provide “reasonable notice of actions taken … for the purpose of reducing the risk of transmission to individuals present on the premises.” This notice requirement does not apply to personal residences unless used in the operation of a business.
So far, there is no guidance on what this notice should include. Common sense, however suggests that it could include information on minimum entry requirements such as mandatory face coverings or temperature screening. The “notice” may also provide information on distancing and other on-site requirements. Notice to employees may be more elaborate, and should include a roll-out of the business’ COVID-related rules, policies and procedures. The point is to ensure that all premises visitors (including employees) know about and follow premises-specific precautions to prevent the spread of the disease.
Keep up with federal, state and local requirements. This limited immunity does not relieve a business, person or pool from exercising due care. Everyone should continue to follow federal, state and local directives and guidance on masks, distancing and premises safety.
There is plenty of guidance out there. At the federal level, the Occupational Safety and Health Administration (OSHA) has published guidance for reducing workplace exposure to COVID-19. The Centers for Disease Control (CDC) provides strategies on how employees who had COVID-19 may return to work, and the CDC’s Reopening Guidance explains what to do and how businesses should clean as they prepare to reopen or expand operations. At the state level, North Carolina’s Department of Health and Human Services has a comprehensive resource page with links and guidance for North Carolina businesses. Counties are also providing guidance. Mecklenburg County,for example, has aggregated links to state and federal resources, as well as certain county-specific information such as guidance on the use of face coverings.
Document compliance measures. Would-be plaintiffs will challenge businesses’ compliance, so businesses will also need to document their efforts. This can include, for example, updating workplace policy manuals and documenting training on topics such as hygiene, distancing and other safety requirements and getting employee sign-off. Posting and documenting premises notices and directives to employees, visitors and customers is also a good idea. This documentation may prove very helpful to a business defending against a future COVID transmission claim.
Key Takeaways
The immunity to COVID-contraction liability is not complete. People and businesses still need to take care to keep up with the laws and regulations – even as they change. Stay informed. Businesses, in particular, should document the measures they have taken to prevent COVID-19 transmission. Not only will this keep the business and its customers and employees safe, it will better position them down the road if litigation arises.
Additional Information
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