The RESET Task Force’s proposals come as other states consider similar types of recommended actions, including establishing comparable protections for various businesses.
On November 30, 2020, the Associated Industries of Florida (AIF) released a 74-page report compiled by its Restore Economic Strength through Employment & Tourism (RESET) Task Force, highlighting a number policy proposals intended to help Florida’s economy “rebound from the effects of the coronavirus pandemic and any similar future economic slowdowns.”
The report, which makes a number of broad recommendations, encourages the state to address “legal liability and legal reform issues as quickly as possible to avoid acts which would only serve to harm the business recoveries needed to get our state back on track.” In the report, the task force proposes with respect to “COVID-19 related claims” (without elaborating further on exactly what types of claims those might be):
- Adopting a heightened culpability standard, under which, to establish liability, the defendant must have acted with gross negligence or intentional conduct;
- Adopting a heightened evidentiary standard of clear and convincing evidence (rather than a mere preponderance of the evidence) to establish liability;
- Shortening the statute of limitations so that businesses will not face COVID-19 liability years after the pandemic;
- Exempting essential businesses entirely from COVID-19; and
- Protecting employers from employees’ COVID-19 related claims, including in any enforcement actions brought under state law, so long as the employer complied with applicable guidelines.
The report reviews the needs of a variety of industries in supporting its proposals, including with respect to limits on liability. For instance, the report notes that liability is a significant concern for agricultural business owners, as “COVID-19 could potentially become a huge target for litigation and lawsuits… especially in the case [of] an essential industry like agriculture [that] continued working throughout the shutdown.” With respect to the healthcare sector, the task force specifically proposes that the state enact legislation “that would limit liability to only those cases of gross negligence or reckless misconduct.” (Emphasis added.) The concern, according to the task force, is that absent the protection:
[A] significant amount of Medicare and Medicaid dollars that are necessary for health care providers to continue to pay their employees and provide services will be redirected to trial lawyers, which will likely require providers to either divert necessary resources, reduce services, or shut down, leading to significant job loss and impacts on local economies.
The RESET Task Force’s proposals come as other states consider similar types of recommended actions, including establishing comparable protections for various businesses. For example, in September, Ohio Governor Mike DeWine signed into law legislation protecting individuals and businesses from liability for deaths or injuries resulting from COVID-19 exposure except in cases where the defendant engaged in reckless conduct, intentional misconduct, or willful or wanton misconduct. Similar legislation was just vetoed by Pennsylvania Governor Tom Wolf.
What will come of the task force’s recommendations remains to be seen. That said, Florida Governor Ron DeSantis has, in recent months, signaled agreement with the need for limitations on liability related to COVID-19, telling reporters in September that “[t]here is a lot of concern about liability” and that he “believe[s] it holds the economy back.”
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