Georgia Extends Limited COVID-19 Liability Protections

The Georgia COVID-19 Pandemic Business Safety Act (GCPBSA), which has been in effect since last summer, provides some protection to businesses and individuals from COVID-19 exposure claims (and other types of claims). Originally, the law applied to all claims that accrue before July 14, 2021, but now applies to claims that accrue before July 14, 2022. Businesses in Georgia have another year of protection from civil lawsuits arising out of alleged COVID-19 exposure, transmission, infection, or potential exposure. Business, however, must take some specific proactive steps to take advantage of this protection – so you need to make sure you understand the details of this law, the limitations of the law and the larger legal landscape applicable to employers.

The Extension of the GCPBSA
The Georgia legislature recently passed House Bill 112, which extends the protections granted to Georgia businesses by the GCPBSA. The protections originally had a sunset date of July 14, 2021, but House Bill 112 extends the law until July 14, 2022. Governor Brian Kemp has now signed the legislation, so businesses have continuing protection under GCPBSA.

The Details
The GCPBSA creates a rebuttable presumption that a plaintiff bringing a civil case in Georgia against a person or business related to COVID-19 assumed the risk of exposure, transmission, infection, or potential exposure related to COVID-19 under certain circumstances. Assumption of the risk is normally a defense that a business or individual being sued has to prove, requiring proof that a plaintiff: (1) has actual knowledge of the risk of danger they claim caused them harm; (2) understood and appreciated the risk and danger; and (3) voluntarily exposed themselves to that risk.

The GCPBSA, however, reverses the burden of proof on this issue, and a plaintiff bringing a COVID-19-related claim will have to show that he or she did not assume the risk of exposure, transmission, infection, or potential exposure related to COVID-19. If the plaintiff cannot do this, then a defendant will likely prevail in any such lawsuit. The presumption, however, is rebuttable. In other words, a plaintiff can try to establish that he or she did not assume the risk, but this must be established before a claim may proceed.

The Specifics Necessary To Trigger GCPBSA Protection
For businesses or individuals who do not sell tickets for entry onto their property, the liability protections under the GCPBSA can be triggered by posting signage in at least one-inch Arial font placed apart from any other text at all points of entry to their property that states the following:

Warning
Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.

Business that sell tickets for entry must include on receipts or proof of purchase for entry in at least 10-point Arial font placed apart from any other text, the following warning:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

What The GCPBSA Does Not Cover
The existence of this law does not mean that employers can take a laissez-faire attitude toward COVID-19 or safety in the workplace, as the law has important limitations. First, this shifting of the burden of proof discussed above does not apply to allegations of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. Therefore, the law is not as robust as it seems at first blush: any conduct that rises above negligence is arguably not covered by the law. Second, the GCPBSA does not apply to workers’ compensation claims. Therefore, while businesses should seek the protections of the law, and it can be useful should an employee sue their employer despite the availability of worker’s compensation, employees who get COVID-19 in the workplace will be able to seek redress through the worker’s compensation system. Finally, the Federal Occupational Safety and Health Administration (OSHA) has jurisdiction over workplace safety issues in Georgia, and employers could still be cited under OSHA’s general duty clause if they fail to follow federal guidance from OSHA and the CDC.

What Should Employers Do?

• Post signage at the entrance to your property with the required language regardless of whether you sell tickets for entry to your premises.
• No amount of signage relieves an employer of its obligations under workers’ compensation or the OSH Act, and OSHA continues to target employers for COVID-19 inspections. Therefore, you should continue to follow OSHA’s guidance to mitigate COVID-19 in the workplace and the CDC’s latest COVID-19 guidelines, including the CDC’s latest guidance for vaccinated individuals.
• You should remain vigilant and continue to protect workers from COVID-19, despite Georgia eliminating certain Georgia-specific requirements related to COVID-19 mitigation.

For steps you can take as your number of vaccinated workers continues to increase, read our recent article: Employers, Vaccines and the Recent CDC Guidelines. And, you should immediately consider creating written COVID-19 policies, continue to communicate your COVID-19 policies to employees, and listen to and address any concerns they may have about worker safety.