This is the seventh in a series of Law in the Marketplace columns with practical tips on how to use federal and New Hampshire laws and orders to deal with the COVID-19 pandemic.
On May 1, in a document entitled “Stay at Home 2.0,” Gov. Chris Sununu significantly modified his stay-at-home emergency orders as then in effect in order to provide New Hampshire people with greater flexibility in their daily lives and to permit a partial opening of specified types of businesses and other establishments. The link to this document is https://www.covidguidance.nh.gov/ Stay at Home 2.0 provides useful specific coronavirus safety guidelines for campgrounds, state parks, manufacturing, hospitals, golf courses, and numerous other kinds of businesses and establishments, include barbershops, hair salons, retail stores and restaurants.
By letter dated May 8, to Sununu, the New Hampshire Business and Industry Association (the BIA) and 23 other New Hampshire trade associations have urged the governor to issue an emergency order protecting New Hampshire businesses from liability if their customers, suppliers or other persons (whom I’ll refer to here together as “plaintiffs”) sue them on the ground that their business activities have caused these plaintiffs to incur personal injuries because of “coronavirus exposure” resulting from these activities.
The principal focus of the proposed emergency order is, of course, the personal injury that individuals might incur by becoming infected with the coronavirus at the premises of the business in question. The BIA letter is accompanied by the draft emergency order that the BIA proposes for signature by the governor. The proposed order, if the governor signs it, may, among other benefits, significantly encourage the implementation of Stay-at-Home 2.0.
Together, the BIA and the above trade associations represent thousands of New Hampshire businesses, have many tens of thousands of New Hampshire employees, and provide goods and services to hundreds of thousands of New Hampshire customers.
The BIA letter and attachment propose that the protection from liability that they seek for covered businesses will protect those businesses only if, at the time of the alleged or actual exposure to the coronavirus by a plaintiff, the businesses potentially subject to suit were “relying on. . . applicable government standards and guidance related to coronavirus exposure,” and Stay at Home 2.0 specifies those standards as applicable to various types of businesses and establishments. These standards may include, for example, the wearing of masks, social distancing, careful and regular hand-washing, the regular disinfecting of surfaces, and the avoidance of meetings of more than 10 individuals.
In addition, the BIA letter and proposed order provide that the liability protection that they seek for businesses will not apply if a business otherwise covered by the order acts with gross negligence, engages in willful or criminal misconduct or, intentionally inflicts harm on a plaintiff.
However, the BIA letter and attachment do not bar lawsuits against New Hampshire businesses based on the coronavirus; rather, they protect businesses from liability in these suits if they meet the above standards. And even though plaintiffs in such suits will bear the burden of proof in them, defendant businesses must defend themselves in the suits — possibly at significant cost — and they must make plausible showings that they have complied with all coronavirus safety standards applicable to them.
If the governor signs the new emergency order proposed by the BIA letter and attachment, this may encourage many New Hampshire businesses to reopen or expand their business activities. But these businesses may face risks and costs in doing so. And of course it is possible that the New Hampshire courts may invalidate the order.
John Cunningham is a Concord tax and business lawyer. He has published “Limited Liability Company Operating Agreements” and “Maximizing Pass-Through Deductions under Internal Revenue Code Section 199A”. Both are the leading books in their fields.