By David Jacobs | The Center Square
National business groups have described Louisiana as a “judicial hellhole” and the fear of lawsuits amid the COVID-19 pandemic is real enough that business and government leaders need extra protection, advocates say.
“Our concerns were not only that people were going to get sued, but that the fear of suits would prevent people from reopening,” said Lauren Chauvin, who works on legal and energy issues for the Louisiana Association of Business and Industry.
Recently passed state legislation and proposals pending at the federal level seek to alleviate those concerns, though it remains to be seen how such laws will be enforced.
Louisiana currently is in its version of “phase two” of the White House-approved restrictions meant to control the spread of the new coronavirus. Generally speaking, that means most businesses and institutions are allowed to be open (though not bars) but with limited capacity and with customers and employees wearing face coverings.
The hope is to balance a functioning economy and some semblance of normal life while protecting public health as much as possible. There were several proposals to shield various types of businesses and government entities during Louisiana’s state legislative sessions this year, but House Bill 826 by Rep. Thomas Pressly, a Shreveport Republican, was the broadest.
Lawmakers unanimously approved Pressley’s bill on the last day of the regular session, and Democratic Gov. John Bel Edwards signed it into law. The legislation basically shields any individual, business or government entity from lawsuits alleging the plaintiff contracted COVID-19 at their event or establishment as long as the person or organization made a good-faith effort to follow relevant guidance about mitigating the risk. For a lawsuit to be successful, the alleged damages would need to be caused by “gross negligence or willful or wanton misconduct,” a significantly higher bar than in most civil cases.
If two or more sets of procedures are relevant to the individual or organization, they only need to substantially comply with one to get the protection.
“Under my legislation, it’s local, state or federal guidelines,” Pressly said. “The key word there is ‘or.’ As long as you’re showing that you’re following some guidelines, you have this protection.”
But what are you supposed to do when guidelines are contradictory? For example, Edwards has asked businesses to help enforce his mask mandate and warned companies that fail to do so could lose the protection House Bill 826 provides.
But Republican Attorney General Jeff Landry has issued an opinion calling the mandate unconstitutional. A government entity attempting to force a business to comply by revoking its license to operate, which the Edwards administration has threatened to do, would violate due process and expose the government to liability, Landry says. Business owners who attempt to enforce the mask mandate also could be subject to lawsuits, he says.
“It does put the employers and the businesses in a difficult position,” said Ed Hardin Jr., a labor and employment attorney with Kean Miller.
Hardin suggests that, when in doubt, it makes sense to follow the more restrictive guideline, noting that “the governor’s order is still the governor’s order” while an AG’s opinion is just that, an opinion, and does not carry the force of law. Three Jefferson Parish business owners have incorporated Landry’s arguments into a lawsuit seeking to overturn the governor’s executive order, which also closed bars and limited indoor groups to 50 people or fewer, and it will be interesting to watch how the lawsuit plays out, Hardin adds.
The Louisiana law says employees have no tort remedy against their employers for workplace exposure to COVID unless the exposure was intentional. It does not affect employees’ rights under workers’ compensation law.
For employees, establishing that they were infected at work isn’t necessarily enough for a successful workers’ comp claim, said Trenton Oubre, an attorney with Breazeale, Sachse & Wilson, who frequently represents employers in workers’ compensation defense. The disease must be “peculiar or unique to that employment” for the employer to be liable, he said.
Oubre said he is starting to see workers’ comp claims from medical providers, grocery store employees, food delivery workers and others who worked while many people were encouraged to stay home. Health care providers likely will have an easier time arguing that contracting COVID-19 is inherent in their work than most other workers, he said, but it’s impossible to know yet how the courts will handle such claims.
Oubre said there isn’t case law that guides how workers’ compensation should handle an occupational illness claim for a disease that can be contracted almost anywhere. If the first COVID-19 decision goes in a worker’s favor, “the floodgates could open,” he said.
Congressman Garret Graves, a Baton Rouge Republican, introduced bipartisan federal legislation that seeks to establish similar protections as in Pressly’s bill nationwide. Senate Majority Leader Mitch McConnell and members of the Trump administration said they want to include lawsuit protection in the next COVID-19 relief bill.
“Among all of this chaos and uncertainty [related to the pandemic], what government’s role at this point is helping to provide better predictability, better stability, and better security,” Graves said. Protection from potentially frivolous lawsuits is part of that role, he said, adding that thousands of lawsuits seeking damages for alleged COVID-19 exposure already have been filed across the country.
Graves’ bill shields from liability a person or organization making a “good faith” effort to comply with government or professional guidance, taking into account that some guidelines have shifted since the pandemic began.
“You can’t expect somebody to have a crystal ball,” he said.
Asked about Edwards’ mask mandate, Graves said he wouldn’t expect a business owner or employee to “be law enforcement,” but refusing service to a customer who won’t wear a mask would be a reasonable option.
Graves’ legislation would preempt state law unless a state has more restrictive guidelines than the federal government, in which case the state law would apply. Especially for businesses that cross state lines, some kind of national standard is important, he said.