Florida business owners, including property owners and landlords, want to safely resume business operations as the economy opens during the COVID-19 pandemic. But, without state-level protection to safely open, business owners are left to forge their own insulation from COVID-19 liability.
Protection By Statute or Executive Order (Non-Florida)
Some industry groups have successfully lobbied for individual state protections. For example:
- California: hospitals and healthcare professionals have no COVID-19 liability absent a willful act or omission.
- New York: nursing homes now have the same liability shield previously applicable to traditional healthcare facilities.
- Nevada: the hospitality industry is now protected by Senate Bill 5 which protects hotels, casinos and their employees from COVID-19-related claims.
Meanwhile, in the absence of any governing federal statue matter, other states have crafted their own business-protective remedies based on differing types of liability.
- Georgia: Senate Bill 359 limits general civil liability for claims that accrue before July 14, 2021 absent a showing of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
- Iowa: Senate File 2338 addresses premises liability and in most instances protects the person in possession of the premises from liability when individuals enter the premises and contract COVID-19.
- Kentucky: Senate Bill 150 addresses product liability affecting manufacturers of personal protective equipment (PPE) or personal hygiene supplies in response to the public health emergency.
Protection in Florida: Mitigation and a Good Business Lawyer
The Sunshine State currently has no statute or executive order addressing COVID-19 liability, so Florida businesses, property owners, and landlords must fall back on the traditional defenses to negligence claims in response to a COVID-19 injury claim. However, there has been no specific governmental guidance (nor legal precedents) regarding what constitutes negligence, so businesses should be extremely careful when gauging how to avoid liability. Therefore, every possible exercise of reasonable care should be taken, and property owners and landlords should take proactive steps to minimize risk, including:
- Compliance with the latest CDC directives for evaluating the overall safety of a building (see COVID-19 Employer Information for Office Buildings) ,
- Taking certain precautions in the operation of office buildings and retail shopping centers, paying particular attention to common areas.
- Operating under heightened screenings when managing multifamily properties and residential condominiumor cooperative buildings. Most residential and commercial leases include some form of a “Compliance with Laws” clause that binds the property owner or landlord to obey, perhaps even enforce, local laws, regulations or government directives.
- Obtaining liability waivers from visitors to absolve, exculpate, or forgive in advance the owner or operator of the commercial establishment of liability claims that the visitor contracted an infectious disease while on the premises.
The Bottom Line
Since Florida does not yet have a COVID-19 legal immunity law, property owners and landlords should exercise care to avoid liability claims related to COVID-19. Best practices, then, dictates that all businesses should, at minimum, follow the CDC guidelines (or any more stringent local government guidelines, if applicable) with regard to personal hygiene, social distancing, wearing masks, and keeping surfaces clean. It is further recommended that a professionally drafted liability waiver, signed by visitors to the business, be incorporated into every business’ COVID-19 risk mitigation strategy.
As always, if you or your company want to discuss this further, or you would like us to prepare a COVID-19 liability waiver for you, please don’t hesitate to call us at 772-497-6544.