On Wednesday, August 5, 2020, Governor Brian Kemp signed into law S.B. 359, the Georgia COVID-19 Pandemic Business Safety Act (codified at Official Code of Georgia §§ 51-16-1 to 61-16-5) (the “Act”). The Act limits the liability of businesses, churches, schools, individuals, healthcare facilities and healthcare providers (among others) for certain legal claims under Georgia law related to COVID-19.
Who the Act Protects
In general, and subject to compliance with the Act, the Act protects:
- Individuals,
- “Entities”—this term includes, among other things, business entities such as corporations, LLCs and partnerships, as well as trusts, churches, nonprofit organizations and schools; and
- Healthcare providers and healthcare facilities (as those terms are defined in the Act).
In this Client Alert, we’ll refer to these individuals, entities, providers and facilities as “Covered Entities”.
What the Act Protects Against
In general, the Act protects Covered Entities from liability for certain tort claims defined as “COVID-19 Liability Claims”. COVID-19 Liability Claims include causes of action for the following:
- Transmission, infection, exposure, or potential exposure of COVID-19 to a claimant:
- At any healthcare facility or on the premises of any entity, individual or healthcare provider, resulting in injury to or death of a claimant; or
- Caused by actions of any healthcare provider or individual resulting in injury to or death of a claimant;
- Certain acts or omissions by a healthcare facility or healthcare provider resulting in injury or death from COVID-19 or where the response to COVID-19 reasonably interfered with arranging for or providing healthcare services or medical care; or
- Manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer by an entity during the COVID-19 state of emergency, which departs from the entity’s normal manufacturing, labeling, donating or distributing of personal protective equipment and which proximately results in injury to or death of a claimant.
The Act provides that Covered Entities will not be held liable for damages in an action involving a COVID-19 Liability Claim unless the claimant proves that the actions of the Covered Entity showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. The Act also provides that the immunity from liability provided under the Act is in addition to, and does not limit, other immunity protections that may exist under federal or state law.
Further, the Act provides for a rebuttable presumption of a claimant’s assumption of risk when the claimant enters the premises of a Covered Entity if the Covered Entity has given a warning notice as prescribed by the Act (discussed under “What You Should Do” below). “Premises” is defined broadly to include “any property owned, occupied, leased, operated, maintained, or managed by an individual or entity, whether residential, agricultural, commercial, industrial, or other real property located within the State of Georgia” other than a healthcare facility. Similar rules appear to apply to healthcare facilities.
When and How Long the Act is Effective
The Act takes effect today, August 7, and it applies to causes of action accruing until July 14, 2021. It does not apply to causes of action that accrue after July 14, 2021.
New Questions and Limitations of the Act
As is typical with new laws and regulations enacted in connection with the COVID-19 pandemic, many questions arise from the Act, and it will take time for the answers to become clear. Among those questions, it is not entirely clear how the Act will affect liability under federal laws and regulations, including federal employment laws. In addition, the Act makes clear that it does not modify or supersede provisions of certain provisions of the Official Code of Georgia, including Title 16 (crimes and offenses), Title 31 (health or related state regulations), Chapter 9 of Title 34 (workers’ compensation) and Chapter 3 of Title 38 (emergency management). Nevertheless, we recommend that Covered Entities take steps immediately to comply with and benefit from the protections afforded by the Act.
What You Should Do
You or your organization should consider immediately taking the following actions prescribed under the Act, in order to benefit from the presumption of assumption of risk when entering your premises, as provided under the Act:
- At every point of entry to your or your organization’s premises and at every point of entry to a healthcare facility or a healthcare provider’s premises you should post:
- A sign in at least one-inch Arial font,
- Placed apart from any other text,
- Stating the following warning (using this exact text specified in the Act):
Warning
“Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.”
- If you or your organization issues receipts or proofs of purchase for entry onto your or your organization’s premises or for attendance, such as an electronic or paper ticket or wristband, you should include on the receipt or proof of purchase:
- A statement in at least ten-point Arial font,
- Placed apart from any other text,
- Stating the following warning (using this exact text specified in the Act):
“Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.”