New Hampshire business groups band together for Covid ‘safe harbor’

Some 35 business organizations are behind a Business and Industry Association of New Hampshire effort to push state lawmakers and the governor to back Covid-19 liability protections for companies.

The effort comes before the language of the bill, to be introduced by Sen. Bob Giuda, R-Warren, has been finalized. But it would provide a safe harbor, meaning that a business couldn’t be sued as long as it is following guidelines, he said, but “bad actors” would not be protected.

“The wording will get some massaging,” Giuda told NH Business Review. “But the last thing businesses need now is a frivolous lawsuit that will cost someone 40 or 50 grand just to defend against it. Businesses are doing their part. The least we can do is provide them a safe harbor.”

Giuda said he was diagnosed with Covid-19 three weeks ago, and although the disease put him flat on his back, he considers himself 80% recovered. He said he has no idea how he got it and was not the kind of person who would sue anybody over it anyway.

Businesses locally and nationally have long been pushing for liability protection against lawsuits, but so far in the first few months few have materialized. Giuda said he knew of no such suits in New Hampshire, but he added, “it only takes one. Someone is going to sue.”

‘Spurious claims’

Sununu has said he supports liability protections but would prefer that it be passed at the national level. Business lobbyists in Washington pushed for such protections as part of the Covid relief package. But it was not included, primarily because of objections from Democrats, and now they are working for it at the state level.

On Tuesday, the BIA delivered a letter to Governor Sununu and the leaders of both parties in the Senate and House urging the state follow in the footsteps of 16 others that have adopted similar legislation.

“Absent such protection, employers of all shapes and sizes will be the target of spurious claims of misconduct. Some will be deterred from fully reopening or returning to pre-pandemic operations, slowing New Hampshire’s economic recovery,” the letter states.

Two lobbyists from the BIA, David Juvet and David Greer, both said liability was among the organization’s top priorities for the 2021 session. Greer emphasized that such a measure wouldn’t just protect businesses, but hospitals, municipalities and private and public schools.

Draft language

While both Giuda and the BIA declined to disclose the legislation’s language before it was finalized, NH Business Review did obtain a draft that has been circulating among some of the lobbyists and business groups backing the bill.

The draft says that a business couldn’t be sued “for personal injury resulting from or related to an actual or alleged exposure to Coronavirus in the course of its business activity” or by someone working for the business, as long as at the time, the business was “relying on and generally following applicable government standards and guidance related to Coronavirus exposure.”

The exception? “Clear and convincing evidence that the injuries were the result of gross negligence, willful misconduct, intentional criminal misconduct or intentional infliction of harm.”

Any such case would have to be filed within a year when that exposure occurred, according to the draft.

In addition to the BIA, the letter backing liability protections was signed by representatives from the National Federation of Independent Businesses, the New Hampshire Bankers Association, New Hampshire Auto Dealers Association, New Hampshire Grocers Association, New Hampshire Lodging and Restaurant Association, New Hampshire Motor Transport Association, New Hampshire Retail Association, New Hampshire Convenience Store and Energy Marketers, New Hampshire College and University Council, New Hampshire Hospital Association, New Hampshire Medical Society, New Hampshire School Boards Association, Ski New Hampshire and a host of tourist groups and chambers of commerce, including those in Portsmouth, Concord, Dover, Nashua, Rochester, the Lakes Region, Upper Valley, Mt Washington Valley and North Country.