As employers reopen, New Hampshire business group pushes governor to relax legal liability

  • New Hampshire Gov. Chris Sununu, center, speaks to reporters as N.H. National Guard Major General David Mikolaities, left, and Sen. Jeanne Shaheen, D-N.H., right, look on as pallets containing personal protective equipment, behind, are unloaded from a FedEx cargo plane, Sunday, April 12, 2020, at Manchester-Boston Regional Airport, in Manchester, N.H. The cargo plane, carrying about 91,000 pounds of personal protective equipment, which is helpful in preventing the spread of the coronavirus, arrived at the airport in Manchester from Shanghai, China, after passing through U.S. Customs in Anchorage, Alaska early Sunday, April 12. (AP Photo/Steven Senne) Steven Senne

Monitor staff
Published: 5/6/2020 5:22:20 PM

For New Hampshire retailers, reopening day is just around the corner.

Gov. Chris Sununu will be lifting state-imposed restrictions on specific businesses May 11, and life in city main streets and plazas could soon look a little busier, along with some coronavirus-inspired sights. Shuttered storefronts will be transformed into partially open businesses with masked patrons and socially distant queues.

But amid next Monday’s gradual reopening, New Hampshire’s top business lobbying organization is worried about one potential side effect: lawsuits. And now, it’s pressing Sununu to shield businesses from legal risks from someone who falls ill after stores re-open.

In a letter to Sununu Tuesday, the Business and Industry Association warned of what it said was frivolous and damaging litigation brought against businesses and urged the governor to sign a “safe harbor” order to protect them.

“New Hampshire employers who are already struggling through the effects of this pandemic should not be further harmed by unwarranted COVID-19 related litigation,” said Jim Roche, the BIA president.

But the request touched off a fierce protest from Democratic lawmakers, who said it would protect business leaders who create unsafe conditions and “may cause unintended and devastating consequences.”

And it pushed into the New Hampshire spotlight a debate that’s been raging in other states and Congress.

Now, two Democratic state senators have written their own letter to Sununu to convince him not to consider an order.

“Granting blanket immunity to businesses from liability as it relates to spreading the coronavirus would be a grave mistake,” wrote Sens. Kevin Cavanaugh of Manchester and Martha Hennesey of Hanover in a letter Friday. “It would be a mistake, not only because of the physical danger that it presents to New Hampshire public health, but also the danger it poses to the intricate and complicated legal relationship between employee and employer.”

Under the BIA’s proposed order, the threshold for legal liability for lawsuits related to the COVID-19 pandemic would be raised, reducing the opportunity for employees or customers to sue.

“No business organization shall be liable for personal injury resulting from or related to an actual or alleged exposure to coronavirus in the course of such business organization’s business activity, or in the course of working for such business organization in any capacity,” the draft language states in part.

The protection would apply as long as the business “was relying on and generally following applicable government standards and guidance” around the virus.

For the BIA, it’s a common-sense step that will help businesses struggling to get back on their feet to defend themselves from lawsuits driven by a virus they can’t control.

The idea, business leaders say, is to protect store owners who are making “good faith” efforts to follow guidelines – not ones being willfully negligent. The proposed order does not protect businesses that display gross negligence, willful misconduct, intentional criminal misconduct or intentional infliction of harm.

“Without safe harbor liability protection, some businesses will be deterred from opening and others from returning to pre-pandemic operations,” Roche said in a statement. “This is exactly the opposite of what policymakers hope to achieve.”

Roche said that Sununu should sign the changes as an executive order for now and that “legislative leaders take the issue up when the Legislature fully reconvenes.” At that point, he said, the Legislature could tweak the order.

But Democratic lawmakers have rejected the idea entirely.

“If workers cannot be kept safe, then they should not be back in the workplace,” said Sen. Dan Feltes of Concord, a candidate for governor. “The discussion of blanket immunity for corporations who put their workers at risk is a non-starter.”

In their letter, Hennessey, the chairwoman of the Senate Judiciary Committee, and Cavanaugh, who heads the Senate Commerce Committee, argued that the state’s legal framework already allows for protection from frivolous suits.

“Our laws take into account the possibility and inevitability of reasonable mistakes, and no employer or business can be held responsible for potential harm caused by infection of employees or customers, unless it is proven that they acted unreasonably under the circumstances,” they wrote.

Sununu has not been clear whether he would support a state order. But he has supported the concept of liability protection.

“There’s a lot of businesses that simply will not open; they’re afraid to open,” he said in a press conference Wednesday, “because of the potential liability to themselves or their workers or even their customers. So looking to provide some of those protections to get businesses to open up to allow things to move forward would be very important.”

Sununu argued, however, that it’s a question that should be answered at the federal level by Congress and not at the state level, citing issues with a patchwork system.

Senate Majority Leader Mitch McConnell has pressed for the liability protections as a key condition in any future spending agreement.

(Ethan DeWitt can be reached at, at (603) 369-3307, or on Twitter at @edewittNH.)


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