Lukewarm reception for Covid liability protection

A proposal to shield New Hampshire businesses from liability arising from the Covid-19 virus received a lukewarm reception May 6, when it was presented to the Governor’s Economic Re-Opening Task Force.

A day earlier, the Business and Industry Association of New Hampshire had asked Gov. Chris Sununu to declare an emergency order that would spare businesses operating in compliance with prescribed public health guidelines from liability should an employee, customer or client sickened by the virus file a personal injury suit. The emergency order was intended Attorney James Harris, who wrote proposed language for potential legislation, as a prelude to pursuing legislation with said that without liability protection the same intent when the Legislature reconvenes.

The overture included draft language, prepared by a team of attorneys, which Jim Roche, president of the BIA, said could serve as a basis of both the emergency order and subsequent legislation. James Harris, an attorney at Sheehan Phinney who served with the drafting team, told the task force that the proposal would provide that no business shall be liable for personal injury caused by exposure to coronavirus while working for or otherwise engaged with the business, provided that the business was complying with all guidance and protocols to protect public health.

Only if there were “clear and convincing evidence” that exposure resulted from “gross negligence, willful misconduct, intentional criminal conduct or intentional infliction of harm” on the part of the business could it be held liable. Harris echoed the BIA by saying that without a measure of protection against liability there was a heightened risk of slowing the pace of economic recovery, as some firms would choose to remain shuttered while others trimmed their operations and workforce.

Sen. Kevin Cavanaugh, D-Manchester, chair of the Senate Commerce Committee — who with Sen. Martha Hennessy, D-Hanover, had written to the governor the day before calling the proposal “a mistake” — acknowledged the importance of the issue. But he said that it was outside the scope of the task force.

Sen. Sharon Carson, R-Londonderry, cautioned that “this will get complicated,” suggesting the issue be vetted by the New Hampshire Bar Association. “In particular, she raised the question of creating a precedent, which she said “could be applied to any communicable virus, including the common cold.”

Meanwhile, the governor, questioned at a press briefing on Wednesday, replied “it is a very serious issue” and “we’re looking at it. There are a lot of businesses that should be protected. Absolutely.” But he also repeated that “it’s a question that should be answered at the federal level by Congress and not at the state level.” — MICHAEL KITCH