A COVID-related bill in the Legislature pits businesses against rank-and-file workers

By: - January 25, 2021 8:02 pm

State Sen. Jeff Brandes, R-St. Petersburg. Credit: Colin Hackley

Legislation that would make it harder to sue businesses that expose people to COVID-19 is moving forward in the Florida Legislature, where a face-off looms between businesses, employees, lobbyists and trial lawyers over a top priority for the Republican leadership.

Big-business interests and small businesses are demanding protection against litigation, while rank-and-file workers fear they’ll be harmed by what Democrats term the “blanket immunity” the bill would bestow.

“We’ve got hundreds of thousands of frontline workers out there making the state work, keeping the state going, putting their lives on the line every day and those of their families,” Rich Templin, representing the Florida AFL-CIO, argued Monday during a hearing before the Senate Judiciary Committee.

“And how interesting is it that the first major COVID policy to come out of the 2021 legislative session is liability protection for business?” he wondered.

The committee’s GOP majority outvoted its Democrats to advance the legislation. There are more steps to go, with the two-month legislative session starting March 2.

“Advancing this legislation early in our committee weeks sends a clear message that Florida is open for business, and we intend to keep it that way,” Senate President Wilton Simpson said in a written statement. He represents Citrus and Hernando counties and part of Pasco.

The bill (SB 72) is sponsored by the committee’s chairman, Republican Jeff Brandes of Pinellas County. Similar legislation is pending in the Florida House. Separate legislation would protect medical service providers.

The idea is to shield businesses and other institutions from lawsuits by people alleging they became infected while on the job or using the business’s services, so that owners won’t be afraid of being financially crippled over — to name one contingency mentioned during the hearing — neglecting to sanitize a salt shaker on a restaurant table.

An array of business organizations warned that fear of such lawsuits could hobble Florida’s economic recovery.

“This bill is built on what we’ve seen from around the country. Dozens of states have looked to address and recognize that their communities need support, that they need certainty. If this bill does one thing, it seeks to provide certainty. It seeks to provide a safe harbor” from liability lawsuits, Brandes said.

Democrats including lawyer Tina Polsky, who represents parts of Broward and Palm Beach counties, argued that these fears are overblown. A wave of litigation is unlikely, she said, not least because it’s too difficult to link any particular COVID infection to a specific business.

”We want to encourage the businesses who took the precautions, who gave their employees paid sick leave, who socially distanced their tables, for example, at a restaurant. Who spent a lot of money on sanitizing, on plexiglass, on PPE [personal protective equipment],” Polsky said.

“What I think this bill could do is potentially forgive those businesses who did not take the time and do those things or invest the money to make a safer workplace or place to do business,” she said.

The bill would require anyone who wants to bring a COVID lawsuit to first find a doctor willing to swear, “within a reasonable degree of medical certainty, that the plaintiff’s COVID-19-related damages, injury, or death” can be linked to acts or omissions by the targeted business.

Additionally, a lawsuit would have to establish that the business failed to make “a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued,” the bill says.

Finally, a plaintiff would have to establish that the business committed gross negligence while meeting a high burden of proof — clear and convincing evidence.

The medical affidavit requirement is to provide “some way for us to separate the wheat from the chaff” in terms of legitimate claims short of the formal discovery process, wherein a party to a lawsuit can demand the other side provide relevant evidence, Brandes said.

That process can take a long time and cost a lot of money.

The committee voted along party lines to defeat a series of Democratic amendments that would have weakened the bill, including one by Polsky that would have lowered the burden of proof from clear and convincing evidence to the “greater weight of the evidence.” She argued the higher standard would be “almost impossible to reach.”

Critics complained that the legislation would harm rank-and-file workers and wouldn’t deter egregious violations of COVID safety standards.

“Nobody’s going after the corner pizza shop,” said Templin of the AFL-CIO. “They know they don’t have any money. Nobody’s filing lawsuits against these tiny restaurants and small businesses,” he added. “We’re here for the Wal-Marts of the state. We’re here for the Lowe’s [home improvement stores] of the state.”

Brandes seized on the remark. “That’s a moment of honesty right there, and you should take it as such. But let me tell you, they will come for your small businesses eventually,” he said.

Indeed, representatives of some of the biggest business interests in Florida were there to support the bill, including Associated Industries of Florida and the Florida Chamber of Commerce.

But Bill Herrle, chief of the National Federation of Independent Businesses in Florida, with 10,000 small business members, also spoke in favor.

“They made their best efforts in good faith to substantially follow government-issued public health guidelines. They need to know that you have their back in doing so,” Herrle said.

Barbara DeVane of Florida NOW argued on behalf of the heavily female workforce in classrooms, hospitals, and the hospitality industry. She also took a swing at “the ineptness and the incompetence of our governor. He still has not mandated that everyone wear a mask.”

That drew a rebuke from Sen. Debbie Mayfield, the Republican Leader of the Senate who represents Indian River County and part of Brevard.

“We shouldn’t be attacking the other elected officials. Her comments were not appropriate,” Mayfield said. “I think she was out of order.”

Committee Democrats insisted they weren’t unmindful of the problems businesses face.

“We care about businesses. But blanket immunity that we have here is not what I think should be our first line of attack on a virus that has plagued our community,” Broward Democrat Perry Thurston said.

“I think it’s something we should be addressing,” he said of the lawsuit threat. “But when I have to go back to my community and talk about people being evicted, people having food insecurity, life-and-death issues, I think it’s a sad reflection on the state that this is what we choose to address first as relates to this virus,” he said.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.