It has been one year since the COVID-19 pandemic began and during that time more than 9,500 COVID-19 related lawsuits have been filed across the United States. Out of these 9,500 lawsuits, more than 1,800 employment-related claims have been filed and more than 520 consumer cases have been filed, which are the two main categories of potential claims that pose the biggest threat to Alabama businesses.
Recently, there have been significant developments that will directly impact Alabama businesses, their response to the COVID-19 pandemic and their potential liability for COVID-19 related claims by both employees and customers. These developments include Alabama’s adoption of Act No. 2021-4 into law, the more wide-spread distribution of COVID-19 vaccines, which raises the question of whether employers can require employees to get vaccinated, and Gov. Kay Ivey’s announcement that Alabama’s mask mandate will expire on April 9.
Alabama’s Litigation Immunity Law
To help curb the onslaught of COVID-19 related litigation, on February 12, 2021, Alabama joined other states such as Arkansas, Florida, Georgia, Idaho, Kansas, Louisiana, Nevada, Michigan, Mississippi, North Carolina, Ohio, Oklahoma, Utah and Wyoming by adopting Act No. 2021-4 into law, which provides limited civil immunity for “covered entities” such as businesses, healthcare providers, schools, churches, governmental entitie, and cultural institutions, as well as their officers, directors, trustees, managers, members and employees, from liability for frivolous litigation related to the COVID-19 pandemic. Like those other states, Alabama’s Act does not provide a complete bar or immunity from such claims, but is designed to curtail frivolous claims.
The Act provides immunity for covered entities from the “actual, alleged or feared exposure to or contraction of” COVID-19 unless the plaintiff can demonstrate by “clear and convincing evidence” that the covered entity acted with wanton, reckless, willful or intentional conduct in failing to comply with then applicable healthcare or governmental guidance.
Thus, there are two major hurdles a covered entity will have to surmount to be entitled to immunity under the Act. First, the plaintiff and the covered entity will have to litigate what guidance was even in effect at the time of the plaintiff’s alleged exposure, which will not be an easy task given that, especially in the early days of the pandemic, governmental and agency COVID-19 guidance was a moving target and was often contradictory and varied by industry sector. The second hurdle will involve the plaintiff demonstrating by “clear and convincing evidence” that the defendant acted with wanton, reckless, willful or intentional conduct in failing to comply with then applicable healthcare or governmental guidance. If the plaintiff cannot meet his or her burden, as established by the Act, the defendant covered entity will be afforded immunity.
If a plaintiff is able to make the necessary showing by “clear and convincing evidence,” the Act does provide additional important limitations and additional protections for covered entities. Importantly, if the plaintiff cannot prove a serious physical injury — an injury resulting in inpatient hospitalization of at least 48 hours, permanent impairment of a bodily function, or permanent damage to a body structure — the plaintiff will only be allowed to recover actual, economic compensatory damages, and will not be entitled to punitive damages unless the claim is for wrongful death. Consistent with current Alabama law, punitive damages are the only available damages for a wrongful death claim.
As a further protection, the Act applies retroactively to COVID-19-related civil actions against covered entities that were filed on or after March 13, 2020 (the date Gov. Ivey declared a state of emergency in Alabama) and also imposes a two-year statute of limitations from the date of the damages, injury or death for plaintiffs to file COVID-19-related civil actions.
Can Employers Require Employees to Get Vaccinated?
As the COVID-19 vaccines become more widely available, employers may be considering requiring employees to prove they have been vaccinated as a condition of employment or when hiring new applicants. The EEOC says that employers can, with some exemptions, require employees to be vaccinated. That being said, because the vaccines have only been approved by the Federal Drug Administration under Emergency Use Applications, which provides that individuals must have the option to accept or decline being vaccinated, questions remain whether private employers can require employees to be vaccinated until the vaccines are fully licensed by the FDA.
It is important to note, however, that even when the vaccines become fully licensed by the FDA, federal privacy laws and anti-discrimination laws still may impact employers being able to require all employees to be vaccinated. Employers will have to work closely with their attorneys to develop appropriate policies and procedures regarding the vaccine that align with federal and state anti-discrimination and privacy laws.
Currently, Alabama businesses should consider adopting best practices related to the vaccine, including:
- Encouraging employees to voluntarily get vaccinated as soon as they are eligible;
- If possible, having on-site vaccination clinics;
- Offering employees flexible, non-punitive sick leave options for getting vaccinated;
- Offering employees flexible, non-punitive sick leave options for signs and symptoms after receiving the vaccination;
- Maintaining social distancing protocols and policies; and
- Consulting with a labor and employment attorney to develop policies and procedures related to the vaccines.
Alabama Businesses Must Develop Individual Mask Policies
Even though Alabama’s state-wide mask mandate is set to expire on April 9, 2021 (and Gov. Ivey has stated that she will not further extend the mandate), to protect against potential claims from employees and customers, it is incumbent on Alabama businesses to develop and implement mask policies and procedures. Alabama businesses should think of instituting a “No mask, no service” policy much like the ubiquitous “no shirt or shoes, no service” policies that are in effect at most businesses. The majority of national retailers — e.g., Walmart, Target, Lowes — have already announced they will continue to require masks in jurisdictions that have lifted statewide mask mandates.
Any mask policy should make exceptions for customers and employees that have ADA or other restrictions that makes wearing a mask difficult or impossible. Mask policies must be prominently displayed, and employees should receive ongoing training on the mask policy and enforcement of the mask policy must be achieved in a non-discriminatory manner.
In addition, until the majority of Alabamians have received the vaccine, Alabama businesses should continue compliance with and enforcement of any written policy and procedure designed to prevent the spread of COVID-19. These policies and procedures should include posting signage that reminds employees and customers to continue practicing social distancing and proper hand sanitization. Also, any barriers or dividers that were erected to promote social distancing should stay in place to protect both customers and employees.
Alabama businesses should continue, if able, to provide employees with masks and gloves, hand sanitizer or hand washing stations for customers and employees. Employers also should continue to screen employees for potential symptoms of COVID-19 and immediately isolate and send any employee home who is exhibiting COVID-19 symptoms. In addition, businesses must, in accordance with OSHA guidelines and other privacy laws, continue to inform co-workers of confirmed cases in the workplace. After a confirmed case of COVID-19 in the workplace, the workplace should immediately undergo enhanced disinfection and cleaning.
The end of the pandemic may be in sight, but until then Alabama businesses should remain vigilant in not only developing policies and procedures that are designed to curb the spread of COVID-19, but also implementing and ensuring compliance with any applicable policies and procedures. Not only will these policies and procedures protect employees and customers from potentially contracting the disease, but will also help businesses be subject to the immunity from liability under Alabama Act. No. 2021-4 for COVID-19 related claims.
Meredith Jowers Lees is a commercial litigation attorney in the Birmingham office of RumbergerKirk. She focuses her practice on commercial litigation with extensive experience in securities and financial litigation. In addition, her diverse practice includes defense of insurance companies in bad faith/fraud claims and other coverage claims. Lees can be reached at 205-721-2815 or [email protected].