Hb 112: Extension of the Pandemic Business Safety Act

• Jurisdiction: Georgia,United States
• Citation: Vol. 38 No. 1
• Publication year: 2022
• topic: Business of Law,Civil Procedure

HB 112: Extension of the Pandemic Business Safety Act

Reid Hansen
thansen3@student.gsu.edu

Britt Spurka
bspurka1@student.gsu.edu

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torts

COVID-19 Pandemic Business Safety Act: Amend an Act Relating to Torts to Provide Certain Immunities from Liability Claims Regarding COVLD-19, so as to Extend Applicability for One Year

Code Sections: O.C.G.A. §§ 51-16-1, -2, -3, -4, -5 (amended)

Bill Number: HB 112

Act Number: 175

Georgia Laws: 2021 Ga. Laws 341

Summary: This Act amends the Pandemic Business Safety Act to extend its applicability for an additional year, expiring on July 14, 2022. The Pandemic Business Safety Act provides liability protection limitation to business against tort claims arising from the COVID-19 pandemic.

Effective Date: July 1, 2021

History

Outbreak of the COVID-19 Pandemic in Georgia

On January 21, 2020, the United States Centers for Disease Control and Prevention (CDC) confirmed the first travel-related case of the novel SARS-CoV-2 (COVID-19) within the United States.¹ COVID-19 is "an infectious disease . . . [that causes] mild to moderate respiratory illness" in most people.² This highly contagious disease can cause fever, shortness of breath, cough, muscle or body aches, sore throat, loss of taste or smell, diarrhea, and headache.³ For some people,

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"COVID-19 can even lead to respiratory failure, lasting lung and heart muscle damage, nervous system problems, kidney failure, or death."⁴

The State of Georgia confirmed its first COVID-19 case on March 2, 2020, followed by the state's first death on March 12, 2020.⁵ Six months after the first COVID-19 death in Georgia, the state reported more than 1,110,000 cases, 74,000 hospitalizations, and 20,000 deaths.⁶ In December 2020, Georgia received its first doses of the COVID-19 vaccine.⁷ By early September 2021, the State had administered more than 9,700,000 doses of the various vaccines available.⁸

After nearly a year of business closures, the CDC announced in May 2021 that fully vaccinated individuals could safely travel and "resume activities without wearing masks or physically distancing."⁹ Additionally, Governor Brian Kemp (R) announced in April 2021 that "Georgia is open for business" and issued an order to roll back COVID-19 restrictions.¹⁰ That statewide executive order "end[ed] a ban on large gatherings, eliminat[ed] shelter-in-place requirements,

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and reduc[ed] any remaining distance requirements at restaurants, bars," and other businesses.¹¹ Moreover, the order eliminated law enforcement's ability to close businesses for noncompliance with COVID-19 restrictions.¹²

Throughout the pandemic, business owners have expressed concerns about potential liability from their patrons contracting COVID-19, which are similar to the concerns that medical facilities have when treating patients infected with the virus.¹³ Lawmakers temporarily assuaged these concerns in 2020 by establishing liability protections with the passage of Senate Bill (SB) 359.¹⁴ Yet, even as restrictions began to ease across the state in 2021, continued concerns over liability for COVID-19 exposure in businesses and hospitals remained.¹⁵ In response, lawmakers extended SB 359's liability protections for an additional year with the passage of House Bill (HB) 112.¹⁶

Georgia Legislature Passes SB 359: The Georgia COVID-19 Pandemic Business Safety Act

On August 5, 2020, Governor Kemp signed SB 359 into law as the Georgia COVID-19 Pandemic Business Safety Act (PBSA or the Act).¹⁷ The first version of the PBSA protected certain businesses and entities from liability for COVID-19 related injuries or deaths through July 14, 2021.¹⁸ The Act, which has been extended for an additional

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year, generally provides blanket immunity from liability for negligence claims, but plaintiffs may still recover damages upon a showing of "gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm."¹⁹

Section 1 of the PBSA defines a "COVID-19 liability claim" as a cause of action for the "[transmission, infection, exposure, or potential exposure of COVID-19 to a claimant . . . [a]t any healthcare facility or on the premises of any entity, individual, or healthcare provider, resulting in injury to or death of a claimant . . . ."²⁰ Further, the Act's provisions also extend to "[m]anufacturing, labeling, donating, or distributing personal protective equipment [PPE] or sanitizer . . . which departs from the normal manufacturing . . . that proximately results in injury to or death of a claimant."²¹ Given the scale of the COVID-19 pandemic, the Georgia legislature drafted this section broadly to cover virtually every entity with which COVID-19 liability could arise.²² Although the language of Section 1 primarily focuses on entities, it does expressly provide the same immunities for individual healthcare providers and any persons with "legal responsibility for the acts or omissions of such healthcare facilit[ies] or healthcare provider[s]."²³

One unique aspect of the PBSA is the fixed expiration date of its immunities.²⁴ Although some states take a fixed-date approach like Georgia, other states have opted to end their COVID-19 provisions upon the expiration of a declared state of emergency.²⁵ Still, other states take the broadest approach and provide no expiration date for their COVID-19 immunity provisions.²⁶

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Georgia Tort Litigation Following the Adoption of the PBSA

One of Georgia's earliest COVID-19 related civil cases was Hendrix v. Arbor Terrance at Cascade, LLC, which involved a wrongful death claim that resulted from the spread of COVID-19 in a senior assisted living facility.²⁷ The plaintiffs filed a complaint in the State Court of Fulton County, alleging that, despite restrictions imposed by the facility, the defendants continued to work even after COVID-19 exposure and failed to wear PPE and to restrict outside visitation.²⁸ The plaintiffs also alleged negligence and gross negligence.²⁹ The defendants moved for judgment on the pleadings, contending that the PBSA exempted the facility from liability.³⁰

In an order entered on April 6, 2021, the judge evaluated the defendants' immunity under the PBSA and found that, although the Act "provides broad immunity as to COVID-19 related causes of action the Act still allows a claim to proceed when the otherwise covered defendant showed "gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm."³¹ Pertaining to the state law claims, the judge denied the motion for judgment on the pleadings because, if proven, the plaintiff's claims would defeat immunity under the Act."³²

Bill Tracking of HB 112

Consideration and Passage by the House

Representative Trey Kelley (R-16th) sponsored HB 112 in the House with Representative Sharon Cooper (R-43rd), Representative Kasey Carpenter (R-4th), Representative Mark Newton (R-123rd), Representative Lee Hawkins (R-27th), and Representative John

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LaHood (R-175th) cosponsoring.³³ The bill was prefiled on January 26, 2021, and the House read it for the first time on January 27, 2021.³⁴ Following a second reading in the House on January 28, 2021, the House then referred the bill to the House Special Committee on Access to the Civil Justice System.³⁵

The Committee favorably reported the bill on February 4, 2021.³⁶ On February 9, the House read the bill for a third time.³⁷ That same day, the House adopted the bill by a vote of 99 to 68.³⁸

Consideration and Passage by the Senate

Senator Brian Strickland (R-17th) sponsored the bill in the Senate, and the Senate read it for the first time on February 10, 2021.³⁹ The Senate referred the bill to the Senate Judiciary Committee that same day.⁴⁰

The Committee favorably reported the bill on March 11, 2021.⁴¹ The Senate read the bill for a second time on March 15, 2021.⁴² On March 17, 2021, the Senate read the bill for a third time.⁴³ Senator Bill Cowsert (R-46th) accompanied by Senators Greg Dolezal (R-27th), Steve Gooch (R-51st) and John Kennedy (R-18th), introduced a floor amendment to the bill.⁴⁴ Additionally, Senator Jennifer Jordan (D-6th), along with Senators Gloria Butler (D-55th), Nikki Merritt (D-9th), and Michelle Au (D-48th), introduced an amendment to the bill, which

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would have updated definitions pertaining to COVID-19 found in Code section 34-9-280.⁴⁵ Neither proposed amendment passed.⁴⁶

On March 17, 2021, the Senate adopted the bill without any amendments by a vote of 36 to 17.⁴⁷

On April 5, 2021, the House sent the bill to Governor Brian Kemp (R) to be signed.⁴⁸ The Governor signed the bill on May 4, 2021, with an effective date of July 1, 2021.⁴⁹

The Act

The Act amends the following portions of the Official Code of Georgia Annotated: Chapter 16 of Title 51, relating to COVID-19 claims.⁵⁰ The Act's overall purpose is to extend the sunset provision of SB 359, granting COVID-19 transmission liability protections for businesses and medical providers until July 14, 2022.⁵¹

Analysis

The PBSA and its subsequent extension are a bipartisan effort aimed at keeping Georgia businesses and medical facilities afloat during the COVID-19 pandemic.⁵² Although the Act garnered the support of both plaintiff and defense attorneys, it is far from a perfect solution.⁵³

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Business and Economic Policy Considerations

The PBSA was promulgated to protect businesses, medical providers, and PPE manufacturers from liability stemming from the transmission of COVTD-19. Representative Trey Kelley (R-16th), one of HB 112's sponsors, asserted that in a time when businesses struggle to stay open and medical providers struggle to provide care to the community, those entities do not need to be "attacked by frivolous lawsuits."⁵⁴ Accordingly, the PBSA "allow[s] businesses to stay open so that employees have an opportunity to go to work."⁵⁵ Amy Jensen, a labor and employment attorney at Ogletree Deakins, echoed the...