COVID-19 liability immunity for businesses


Earlier this year, South Carolina Governor Henry McMaster signed into law the South Carolina COVID-19 Liability Immunity Act. The Act is intended to “provid[e] businesses and health care providers with reasonable protections from the risk and expense of lawsuits related to actual, alleged, or feared exposure to or contraction of the coronavirus.” As long as businesses “operate consistently with applicable public health guidance,” they are entitled to liability immunity under the Act.

The Act’s liability immunity provision states as follows: “Notwithstanding any other provision of law, a covered entity or covered individual that reasonably adheres to public health guidance applicable at the time the conduct giving rise to a coronavirus claim occurs shall be entitled to immunity from liability for any acts or omissions resulting in a coronavirus claim.” Covered entities entitled to protection under the Act include for-profit and non-profit businesses, governmental entities, and health care facilities. Covered individuals include directors, employees, agents, contractors, and representatives of covered entities.

The liability immunity provided under the Act is subject to certain listed exceptions, however. With respect to non-healthcare provider businesses, it does not apply to coronavirus claims “if the claimant proves by clear and convincing evidence” that the business caused exposure or contraction of the coronavirus as a result of “grossly negligent, reckless, [willful], or intentional misconduct” or “a failure to make any attempt to adhere to public health guidance.” A lower standard of proof applies to coronavirus claims brought against healthcare providers.

What constitutes “adhere[nce] to public health guidance” for purposes of the Act? Are South Carolina businesses required to follow the recommendations of the Centers for Disease Control and Prevention (“CDC”) to be entitled to immunity? The Act does not specify how a business “reasonably adheres,” but its definition of “public health guidance” is limited to state agencies, and businesses need to comply with federal guidance only “if referenced by state entities”:

“Public health guidance” means any applicable published guidance, directive, order, or rule provided by the South Carolina Occupational Safety and Health Administration, the South Carolina Department of Health and Environmental Control, or another state governmental entity, and federal guidance if referenced by state entities, that is applicable to the type of covered entity or covered individual at issue and to the coronavirus claim at issue.

Therefore, South Carolina business should closely monitor and follow guidance issued by DHEC, OSHA, and other state agencies, including any CDC or other federal recommendations referenced by those state agencies.

Notably, the Act does not apply to “any actions or remedies” under the South Carolina Workers’ Compensation Law. In general, however, South Carolina businesses that reasonably adhere to the public health guidance of South Carolina state agencies such as OSHA and DHEC and make good faith efforts to keep employees and patrons safe should find themselves entitled to protection from coronavirus lawsuits.

Partner Marghretta Shisko

Blog post by attorney Marghretta Shisko. Click here to read more about Marghretta.

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