In a recent movement to protect businesses from lawsuits, some state governors have ordered that healthcare facilities and workers be immune from civil liability during the COVID-19 pandemic (e.g., Illinois). Federal legislators are also discussing a similar protection.

Alabama Governor Ivey has joined in this effort but has taken the matter further by releasing a liability protection order that generally provides a safe harbor for reopening businesses, essentially protecting these businesses from lawsuits as long as they follow public health guidance. (Eighth supplemental state of emergency coronavirus order, May 8, 2020; state health officer order, updated May 21, 2020.)

Within the order, the governor states that although she had progressively issued amended "safer at home" orders allowing businesses to begin the process of reopening, as the result of continuing uncertainty regarding the impact and repercussions of doing so, businesses are reluctant to fully or partially reopen due to fear of lawsuits and the risk of the associated expense and liability (go here for the most recent amendment on May 21, 2020).

The liability protection order provides that "to preserve the lives and property of the people of [Alabama] it is necessary":

6. That reasonable protections from the risk and expense of lawsuits be provided to businesses and healthcare providers that comply with or reasonably attempt to comply with applicable public health guidance [to] encourage businesses to re-open and repair the damage to the economy of the state and the tax revenues of the state and of local governments; and

7. That providing such a safe harbor to businesses and healthcare providers that operate reasonably consistent with applicable public health guidance will help ameliorate the social harms of a closed economy and the spread of COVID-19.

The order provides this liability protection to businesses, healthcare providers and other covered entities, defined as "an individual, partnership, association, corporation, healthcare provider, other business entity or organization, or any agency or instrumentality of the state of Alabama, including any university or public institution of higher education in the state of Alabama, whether any such individual or entity is for profit or not for profit, including its directors, officers, trustees, managers, members, employees, volunteers, and agents."

Ernst & Young LLP insights

As state governors relax their stay-at-home orders to allow businesses to begin to reopen under generally strict guidelines, employers are expressing concern that employees who return to work and customers who return to services, and subsequently become ill with COVID-19, will file lawsuits claiming that their employers and service providers failed to keep them safe. The Trump Administration and Congress are being called upon to pass legislation that provides federal protection from liability to businesses during the COVID-19 pandemic.

The US Chamber of Commerce has released an "Implementing a national return to work plan," addressing the many types of COVID-19-related liability lawsuits individuals could bring against businesses.

In an April 27, 2020, press release, US Senator Mitch McConnell stated:

Here is just one example of an urgent need. While our nation is asking everyone from front-line healthcare professionals to essential small-business owners to major employers to adapt in new ways and keep serving, a massive tangle of federal and state laws could easily mean their heroic efforts are met with years of endless lawsuits. We cannot let that happen. Our nation is facing the worst pandemic in over a century and potentially the worst economic shock since the Great Depression. Our response must not be slowed, weakened, or exploited to set up the biggest trial lawyer bonanza in history. The brave healthcare workers battling this virus and the entrepreneurs who will re-open our economy deserve strong protections from opportunistic lawsuits. Some such protections were included in the bipartisan CARES Act. We will need to expand and strengthen them.

The Senate Judiciary Committee met on May 12, 2020, to discuss the topic of liability during the COVID-19 pandemic. (Press release, May 12, 2020.)

Some states are providing workers' compensation (WC) coverage for healthcare workers, first responders and essential business employees that have become ill with COVID-19 as the result of their continued employment during the pandemic (i.e., Kentucky Executive Order 2020-277). However, WC coverage may or may not protect even these employers from lawsuits. (Forbes article, The Workplace and COVID-19: Workers' Compensation to the Rescue?, 5-13-2020.)

The National Conference of State Legislatures (NCSL) has compiled a list of state governors who have issued Executive Orders and state legislatures that have introduced or enacted legislation requiring that healthcare workers, first responders and, in some cases, essential employees be covered by workers' compensation.

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