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Renewed push for safe harbor legislation to protect businesses from COVID-19 lawsuits

Monitor staff
Published: 12/8/2020 4:05:36 PM

New Hampshire’s Business and Industry Association says it is pushing for the passage of “safe harbor” legislation next year in order to protect businesses from legal liability related to COVID-19.

In a video forum Monday evening, BIA President Jim Roche said the group would renew its efforts to establish the protections after initially advocating for them at the start of the coronavirus pandemic in spring.

“We’re queuing this up again for the Legislature when it begins again in January,” Roche said.

A safe harbor protection would shield businesses from certain categories of lawsuits that might be filed against them by employees or customers who test positive for COVID-19 after spending time in the business.

As envisioned by the BIA, the protection would kick in for any business that had relied upon and followed “applicable government standards and guidance related to coronavirus exposure.” For instance, if the business enforced the state mask mandate, kept employees socially distant and discouraged overcrowding, and an employee or customer contracted COVID-19 after visiting, that business would likely not be liable under the proposed protection.

Only in cases where gross negligence or willful misconduct or intentional criminal conduct could be proven with “clear and convincing evidence – a high legal burden of proof – could the business face damages, under the BIA proposal.

Roche has said that the measure would help protect businesses from crippling litigation in the face of a virus that is difficult to adequately protect against.

But the provision has proven controversial, with Democrats in New Hampshire calling it “a grave mistake,” arguing it could erode worker protections.

“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,” wrote state Sens. Kevin Cavanaugh of Manchester and Martha Hennessey of Hanover in a letter back then. Hennessey has since retired from the Senate.

The effort is being spearheaded in part by Sen. Bob Giuda, a Warren Republican. The idea is to provide businesses basic protection, he argued. 

“If they’re following the rules, they shouldn’t be sue-able if someone contracts COVID and claims that it was from their establishment, whatever that establishment may be,” Giuda said Tuesday. “Again, it’s contingent upon following the rules.” 

An effort to convince Republican Gov. Chris Sununu to implement the provisions failed back in May. Sununu said he supported the idea but thought it would be an action more appropriately taken by Congress.

Sununu’s attorney general, Gordon MacDonald, did issue a guidance in late May arguing that New Hampshire employees would already be blocked from suing their employer over a COVID-19 positive case due to existing law. Under New Hampshire’s worker compensation law, MacDonald stated, employees must seek damages through the worker’s compensation program and are statutorily blocked from suing for personal injuries as long as they remained employed. 

So far, it appears few have done so. On Monday’s video call with the BIA, New Hampshire Department of Labor Commissioner Ken Merrifield said that there had been a marked decline in the number of employees filing worker’s compensation claims at all since the pandemic began. 

“The last time I checked statistics on that, it was actually a very low number,” he said. “Surprisingly low number.”

Merrifield ascribed the drop to a general reduction in business activity through the spring and summer months, but also said that it was “possibly because business owners have not been able to focus on such reporting as diligently.”

Either way, with a Republican state House and Senate in Concord, Roche says he’s hoping the political winds around a safe harbor protection have changed.

“Frankly I don’t think it’s going to happen at the federal level, because you’ve got a Senate that is, while the Senate Republicans are pushing this in Washington, it’s unlikely that the House Democrats or the President-elect will support a legal safe harbor,” Roche said. “At least the kind that we’d like to see.”

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

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