With the emergence of COVID-19, many businesses have carefully taken various precautions to prevent, where possible, viral exposures to their employees and customers. Consequently, the world has witnessed the birth of many new phenomena, such as social distancing and the deployment of remote-work teams.
However, despite their good faith efforts to prevent further infections, many employers and businesses now are concerned about their potential liability to individuals who have nevertheless been exposed to, injured by or killed by the virus because of their actions or the actions of others.
In response, more than 30 states have now implemented some form of COVID-19 “shield law.” Where adopted, these shield laws offer limited immunity that generally prevents people from suing for COVID-19 related injuries, insofar as the injuries arise out of ordinary negligence.
For example, South Dakota’s shield law provides that there can be no relief against an individual or a business relating to an exposure to COVID-19 unless the injured party can prove the exposure was the result of intentional exposure with the intent to transmit COVID-19. As another example, the Tennessee COVID-19 Recovery Act provides that individuals and businesses cannot be held liable for losses arising from a COVID-19 exposure unless the injured person can show, by clear and convincing evidence, that the injury was caused by gross negligence or willful misconduct.
As one can imagine, the scope and breadth of the immunities granted in shield laws vary significantly from state to state. Nevertheless, in most of the states that have adopted COVID-19 shield laws, most businesses and others are shielded from liability unless the suing party can prove that either intentional or willful misconduct or gross negligence resulted in the person contracting COVID-19. (To demonstrate gross negligence, a person must generally present evidence that the action or omission that caused the person to contract COVID-19 amounts to a reckless indifference to human life and was not merely a breach of a reasonable duty of care.)
Several Maryland bills were presented in 2021 that contemplated granting individuals and businesses immunity from liability relating to a COVID-19 exposure unless the injured party could prove either gross negligence or an intentional action caused the harm. However, none of these bills made it past initial hearings. Thus, Maryland is now in the minority, along with approximately 16 other states, in having not enacted a shield law.
The proponents of the failed Maryland bills have argued that settlements from these cases are harmful to small businesses that have already lost significant revenue due to shutdowns. Conversely, opponents of these bills have argued such laws are unfair as they create escape hatches for businesses and others to evade legal consequences and to disclaim negligence.
Despite Maryland’s failure to enact a shield law, the executive branch of the Maryland government did grant some temporary protections to health care providers by way of executive action. For example, pursuant to public safety legislation, a health care provider is immune from civil or criminal liability if the health care provider acts in good faith and under a catastrophic health emergency proclamation.
Since Governor Lawrence J. Hogan, Jr. issued a Declaration of State of Emergency in March 2020, it appears that most “health care providers” would be afforded some limited protections from COVID-19 lawsuits when their actions were taken in good faith.
However, those protections were temporary. Governor Hogan lifted the State of Emergency effective July 1, 2021, followed by a 45-day grace period. Accordingly, the temporary protections for health care providers expired on or about August 15, 2021, for actions taken after that date.
Given that Maryland has not enacted a shield law, and with the state of emergency expired, there is an open question of whether Maryland will see an increase in COVID-19 negligence claims.
While it is possible that Maryland might see more negligence claims as opposed to states that have prohibited these cases, it is far from guaranteed. Even without a shield law in place, injured parties must meet a difficult burden of proof. For example, to prevail in a negligence lawsuit, people will need to present expert witness testimony from medical professionals or infectious disease experts to pinpoint the precise point in time when and where their COVID-19 exposure occurred.
Even for experts, this is challenging. Presently, it is thought that there is a latency period when COVID-19 can asymptomatically live in a human host for somewhere between four and 14 days. However, there are also now thought to be multiple strains of the virus in circulation with different rates of communicability, varying incubation periods and different rates of mortality. Thus, pinpointing the exact moment of exposure, and the harms that would or would not have occurred, but for negligence, will be very difficult.
Conversely, even if Maryland were to implement a shield law that blanketed businesses and others with immunity from simple negligence, it is not clear if such immunity would withstand future challenges in litigation or whether the courts would choose to uphold it.
These are, after all, unprecedented times.
Justin P. Katz
410-576-4102 • firstname.lastname@example.org