SALT LAKE CITY — While details are still emerging from first reports of potential Utah employer misconduct leading to COVID-19 infection of workers, some freshly minted state legislation went into effect last week creating legal immunity for businesses against some COVID-19-related lawsuits from customers or employees.
Yet those tasked with overseeing workplace safety have little in the way of new tools to monitor or enforce appropriate measures to keep workers safe as more Utah businesses come back online amid loosening COVID-19 restrictions.
The special legislative session’s SB3007 created new safe harbor for Utah businesses when it comes to liability issues and COVID-19 infection. It’s also raised questions about the necessity of the new rules and whether the legislation inappropriately strips legal rights from individuals while disincentivizing businesses from being vigilant about workplace safety issues amid ongoing COVID-19 concerns.
The gist of the short bill file can be found in this sentence: “... a person is immune from liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the person, or during an activity managed by the person.” The new law also stipulates that immunity does not apply to instances of willful misconduct, reckless infliction of harm or intentional infliction of harm.
The bill’s principal sponsor, Sen. Kirk Cullimore, R-Draper, said he started putting the proposal together after hearing concerns from business owners about what kind of legal liabilities they might be exposed to as reopening plans are implemented. Cullimore said while the legal bar is already quite high when it comes to proving “causation” in a potential personal injury claim about being infected at work or while a customer, this effort was meant to address frivolous lawsuits that he said can create onerous expenses for companies even if the claims are baseless.
“We’re just trying to prevent opportunistic people from taking advantage of a pandemic,” Cullimore said. “I think you’re going to find that most places of business are going to want to follow (COVID-19) guidelines. And I don’t think this bill totally absolves all liability for business ... and potential claims can still be made under health codes and workers compensation rules.
“It’s not always the liability that’s the concern, it’s the threat of the lawsuit,” Cullimore said. “The lawsuit has operational costs for the business that will need to hire an attorney, make insurance claims, etc. And (under Utah code) there’s no hope of recovering attorney’s fees even if you prevail.”
Sen. Jani Iwamoto, D-Holladay, said during a virtual state Senate floor debate in late April that Cullimore’s bill was too broad and was enacting “major tort reform without ... public discussion.” Iwamoto also unsuccessfully attempted to amend the bill to require businesses to post public notice to remind patrons and employees of their limited legal rights in COVID-19-related liabilities.
Teneille Brown, a University of Utah S.J. Quinney College of Law professor, said immunity provisions are typically very focused to ensure an individual’s protected rights to legal remedies are not impinged. Brown said SB3007 took the opposite approach and placed unfair limits on potential plaintiffs.
“This is far too broad,” Brown said. “If you want to provide immunity you specify a narrow class of behaviors ... you don’t throw it out like political candy.
“What this is saying is, in a pretty broad class, you can’t sue (a business) even if they’re careless ... you have to prove that they intentionally, purposefully want you to be exposed.”
Brown said one of the factors that helps bolster consumer protection rules in Utah is the ability for those consumers to seek redress via the courts, an option she said is limited by the new statute.
“Utah’s weak consumer protections are at least addressable in tort law ... now they want to take even that away,” Brown said. “This is moving the risk of opening the economy onto private citizens.
“How does anyone even assess the risk they’re taking by entering a business or workplace? You enter a restaurant ... and things may seem great in the dining room but you have no idea what’s going on in the kitchen on the other side of the wall. It’s not an informed choice ... and you can’t assume the risk you’re not aware of.”
Brown also noted that even without the immunity provided by SB3007, it would have been hard for plaintiffs to prevail on a claim against a business. To sue for negligence, she said, a plaintiff would have to prove that the business’s carelessness caused their harm.
“Without adequate contact tracing, it would be very hard for a customer to prove that she was exposed or infected with SARS-CoV-2 at a particular establishment, and that this was the cause of her disease,” Brown said. “The restaurant could always say that she was exposed somewhere else. So the immunity is not really even practically necessary.
“But it does provide a stronger sense of security to reopen.”
Whether or not appropriate levels of COVID-19-related best practices are in place in workplaces and areas where the public interacts with a business appear to mostly be a matter of trust without a robust process, or rules, to verify and enforce those practices.
The Utah Labor Commission said it has received about 70 COVID-19-related workplace safety complaints but only three of the reports warranted further scrutiny under current safety standards, which have not been updated to account for new issues raised by the pandemic. None of those three reports resulted in findings of any violations. A commission spokesman noted, however, that even lacking new standards that account for COVID-19 mitigation procedures, all Utah employers have a base obligation to provide a safe work environment.
It is also the case that a Utah employee who believes they contracted COVID-19 at work can file a workers compensation claim. Language in SB3007 stipulates that the new business immunity provision “does not modify the application of the Workers’ Compensation Act; Utah Occupational Disease Act (or) Utah Occupational Safety and Health Act.”
The Labor Commission reports that, as of Wednesday morning, 349 such claims had been filed under the Utah Occupational Disease Act. To prove a claim, according to the commission, the disease must arise out of the employment and be caused or aggravated by the employment.