Good Faith Efforts to Comply with CDC Guidance Provide Protection for Employers
New Florida law protects businesses from liability for COVID-19 lawsuits
On March 29, 2021, Governor Ron DeSantis signed into law Florida Statute 768.38, designed to impose a high standard on plaintiffs seeking to hold businesses, governmental entities, schools, religious organizations, and other persons and entities liable for claims arising out of or associated with COVID-19 exposure. Under the law, for any COVID-19-related civil action to proceed against a covered entity, a plaintiff must first:
- Plead his or her complaint with particularity; and
- Simultaneously submit a physician’s affidavit confirming the physician’s belief that the plaintiff’s COVID-19-related injury occurred because of the defendant’s conduct.
Failure to meet these requirements results in dismissal of the complaint without prejudice.
Further, the court must make a preliminary finding as to whether the defendant made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance when the cause of action accrued. Such a good faith showing results in immunity from civil liability. Game over.
In the absence of such a showing, the lawsuit may proceed. The plaintiff must then meet the high burden of demonstrating by clear and convincing evidence that the defendant acted with gross negligence.
Accordingly, even though employers will benefit from workers’ compensation immunity for any potential claims asserted by their own employees, it remains prudent for all businesses to continue to comply with CDC and local government guidelines to protect employees, patrons, visitors, customers, etc. from COVID-19 exposure, and to document those efforts in written policies and procedures. Such compliance efforts would be “Exhibit A” under this new law in response to any COVID-19 claims asserted against a covered entity.