Should Florida protect businesses from COVID-19-related lawsuits?

When some Florida businesses start to reopen Monday, questions about worker and customer safety are likely to be among their most pressing concerns.

Florida lawmakers want to make it easier on them — by protecting them from lawsuits by customers and employees who get infected with COVID-19 on their premises.

Businesses in MiamiDade, Broward and Palm Beach counties that were deemed nonessential remain closed or limited in their operations. They will be observers Monday as the rest of the state takes the first steps toward normal operations.

As part of a nationwide push, state lawmakers and Gov. Ron DeSantis are considering passing laws and executive orders that would prevent lawyers from making cases against businesses that are simply following the governor’s guidelines.

The potential legislation wouldn’t just protect nursing homes and assistedliving facilities, which are asking Florida and other states for protection as some of their sites become hot spots for COVID-19 infections.

In Florida, the effort is being led by state Sen. Jeff Brandes, R-St. Petersburg, who is frequently on the front lines of Tallahassee’s battles over tort reform. He said he met with DeSantis’ staff on Thursday to pitch the idea.

“I think it’ll be a bipartisan issue,” Brandes said. “It has to be. This is about getting our economy restarted.

“There is a profound consequence that ripples through the economy if 20 percent of your businesses say, ‘I can’t take on the liability of opening my doors,’ ” he added.

Nationally, Republicans in Congress are also advocating for protections from what they have long referred to as “frivolous lawsuits.” President Donald Trump’s administration is also pushing for such protections.

On Friday, Senate Majority Leader Mitch McConnell and House of Representatives Minority Leader Kevin McCarthy issued a joint statement saying that shielding business from COVID-19 lawsuits will be “absolutely essential to future discussions surrounding recovery legislation.”

TRIAL LAWYERS ARE OPPOSED

The idea is already drawing objections from trial lawyers, who are questioning the wisdom of automatically granting immunity to businesses.

“If there is immunity, what does that say to the public?” asked Leslie Kroeger, a Palm Beach Gardens attorney and president of the Florida Justice Association, which represents thousands of trial lawyers. “If you get sick, ‘Really sorry about that.’ That’s not instilling trust. That’s not welcoming people to get back to some sense of normalcy.”

Public health officials, including Dr. Anthony Fauci, the federal government’s top infectious disease expert, say that any reopening will lead to an increase in COVID-19 infections.

“I’ll guarantee you, once you start pulling back there will be infections,” Fauci told The Associated Press last month.

Brandes’ idea is to protect companies that are simply operating within the framework of DeSantis’ executive order. If someone on the premises gets sick and the business was operating properly, it shouldn’t be hit with a lawsuit.

The protection would not be extended to cases of gross negligence. DeSantis himself has said that some long-term-care facilities have not been operating safely.

In March, he singled out Atria Willow Wood, an assisted-living facility in

Fort Lauderdale, where seven residents died. DeSantis

said the facility “was clearly non-compliant, negligent, and it did cost those residents their lives.”

LEGISLATURE HAS A ROLE TO PLAY

Brandes said any significant protections from lawsuits would require action by the Legislature, which isn’t scheduled to meet again this year. However, he said DeSantis could potentially expand the state’s Good Samaritan law, which provides immunity from lawsuits to medical providers in public health emergencies.

Passing COVID-19-related tort reform measures was frequently mentioned by business owners and Republican lawmakers on DeSantis’ task forces to reopen the state last week. Florida Office of Insurance Regulation Commissioner David Altmaier said insurers, which often bear the cost of liability lawsuits, were also concerned about the risk of lawsuits.

“We’ve heard concerns from a variety of stakeholders about the potential of litigation in the coming months and years,” Altmaier said last week. “I would underscore the need for that to be on the minds of task force members as we proceed in deep discussions.”

Tort reform wasn’t included in the task forces’ final report, which was released this week and hardly deviated from DeSantis’ own recommendations.

IT’S NOT WORRY NO. 1

So far, businesses are far more concerned with whether their customers and employees will return than the risk of liability lawsuits, said Bill Herrle, Florida state director of the National Federation of Independent Businesses, which represents small businesses.

“It’s not the most pressing need,” Herrle said. “It’s a cloud over their shoulder. Their more immediate concerns are customers and employees.”

His association supports protections from COVID-19 lawsuits, but he said they don’t want to be seen as trying to take advantage of a crisis to push for longsought reforms.

“We’re not going to be asking for immunity,” he said. “We’ll be asking for some reasonable liability protections.”

Business owners the Herald/Times spoke to said that they either didn’t fear lawsuits, or that it was lower on their list of concerns about reopening.

“I live with risk every day,” said Keith Koenig, CEO of Broward-based City Furniture.

Koenig said he’s kept locations open where possible, such as Naples, Orlando and Stuart, but his South Florida locations will remain closed until DeSantis gives the all-clear.

While he is not waiting on legislation that would indemnify his business, he does believe Tallahassee will come through with it.

“I expect the Legislature to come up with some safe-harbor provisions — that if businesses are acting responsibly, that they should not be held accountable,” he said.

Kevin Craft, owner of City Bike Tampa, said he hasn’t had any conversations about potential liability, and he doesn’t know how people would be able to trace back to where they got sick.

“I don’t put anything past anyone nowadays,” he added.

Kroeger said she hasn’t heard any of her members mention filing COVID-19related lawsuits. She said it would be “ridiculous” and “next to impossible” to bring a lawsuit where somebody fell ill just by visiting a business or restaurant.

“Every place that person has been, you’d have to contact trace everyone in that establishment,” Kroeger said, referring to the method epidemiologists use to trace the spread of disease. “I can’t even imagine taking that on.”

Kroeger said any cases that could be brought would almost certainly be focused on concentrated places where managers were clearly operating recklessly.

“A nursing home? That’s a different situation,” he said.