BIA urges Covid-19 liability ‘safe harbor’ for New Hampshire businesses

The Business and Industry Association of New Hampshire Tuesday urged Gov. Chris Sununu and legislative leadership to take steps to shield businesses from litigation arising from the Covid-19 virus.

For some time, the BIA has highlighted liability as a major concern within the business community, explaining that it poses a big obstacle to resuming commercial activity and returning to full employment.

Jim Roche, president of the BIA, stressed that without protection from litigation some businesses would shrink from resuming operations altogether and others from operating at full capacity, which he added is “exactly the opposite of what policy-makers hope to achieve.”

But, before the day was out, two Democratic state senators had written to the governor calling the proposal “a mistake” and asking him to shelve it.

Roche urged the governor to declare an emergency order creating a legal “safe harbor” to spare firms from liability claims so long as they act in good faith and take appropriate measures to safeguard the health and wellbeing of employees and others.

At the same time, a team of attorneys assembled by the BIA drafted language to this end, which Roche suggested could inform both an emergency order and subsequent legislation.

‘Clear and convincing evidence’

The language provides that no business shall be liable for personal injury caused by exposure to coronavirus while working for or otherwise engaged with the business provided that at the time the business was “relying on and generally following applicable government standards and guidance related to coronavirus exposure.”

Businesses would forfeit their immunity from liability only if there were “clear and convincing evidence” that the injury was caused by “gross negligence, willful misconduct, intentional criminal conduct or intentional infliction of harm” on the part of the business. The statute of limitations provides that any suit must be filed not later than one year after the alleged exposure occurred. “Clear and convincing” is a higher evidentiary standard than “preponderance of the evidence,” generally applied in civil cases. And it would be challenging for plaintiffs to establish the place and time that something as ubiquitous as a viral infection took place.

The governor’s modified stay-at-home order issued on May 1 sets the schedule for reopening different sectors of the economy and specifies the operating procedures for particular industries and businesses.

The plan, along with the guidelines for safeguarding public health were reviewed by State Epidemiologist Dr. Benjamin Chan and his team at the New Hampshire’s public health division.

Roche described the draft as “a starting point for discussion, not the final product,” but urged the governor “to use our language, or similar language” in preparing an emergency order.

“Issuing such an order,” Roche said, “will give the Legislature the time it will need to settle on permanent language when it fully reconvenes.”

Legislators’ response

Meanwhile, liability protection is also on the congressional agenda in Washington, where it has opened a new front in the partisan skirmishing between the Republican Senate and Democratic House.

Senate Majority Leader Mitch McConnell has tied liability protection to further federal aid to state and local governments. “The Senate is not interested in passing a bill that does not have liability protection,” he said. “We have a red line on liability.”

And President Trump has signaled his support, saying, “We have tried to take liability away from these companies.”

On the other hand, House Speaker Nancy Pelosi said flatly “the House has no interest in diminishing protections for employees and customers.”

Whatever the outcome in Washington, federal legislation would have little impact on litigation originating in the states, most of which would be filed under state laws and pursued in state courts.

In Concord, legislation would have to overcome Democratic majorities in both the Senate and House. Already, two Democratic Senators — Martha Hennessy of Hanover, chair of the Judiciary Committee and Kevin Cavanaugh of Manchester, chair of the Commerce Committee — have expressed misgivings about providing a “safe harbor” for businesses.

In a letter to the governor, Hennessy and Cavanaugh questioned his authority to effectively amend a state statute by executive order and asked him not to do so. Likewise, they said it would be a mistake to tamper with what they called the “intricate and complicated relationship between an employer and employee.”

The also noted that as it stands the law provides protections for employers, and in any event any changes require the attention of all stakeholders and the general public, which only the legislative process can provide.

House Speaker Steve Shurtleff of Penacook said, “At first blush I’m always concerned when we’re talking about limiting an individual’s right to seek redress for an injury,” but added he would want more time to consider the proposal “before commenting on the pros and cons.”

The issue will come before the Governor’s Office of Emergency Relief and Recovery when it meets Wednesday afternoon. James Harris of the Sheehan Phinney law firm, one of the attorneys who drafted the language, will present the proposal.