Summary of the New Law
Missouri Governor Mike Parson recently signed into law Senate Bill 51, which provides health care workers, schools, churches, and businesses protections from lawsuits related to exposure to COVID-19. Of particular interest are the significant liability protections from COVID-19 exposure actions (lawsuits) provided in the new law to individuals and entities engaged in business, services, activities, or accommodations and limits certain types of damages.
What is a COVID-19 Exposure Action?
The new law applies to any COVID-19 exposure action, defined as any civil lawsuit brought by a person who suffered personal injury against an individual or entity engaged in a business, service, activity or accommodation and alleging that an actual, alleged, feared, or potential for exposure to COVID-19 caused the personal injury or risk of personal injury that occurred in the course of the business, service, activity, or accommodation of the individual or entity.
The law states that those individuals and businesses will not be liable for any COVID-19 exposure action unless a plaintiff can prove by clear and convincing evidence that (1) the individual or entity engaged in recklessness or willful misconduct that caused an actual exposure to COVID-19, and (2) the actual exposure caused personal injury to the individual.
What Types of Conduct Rise to the Level of Recklessness or Willful Misconduct?
Any potential plaintiff in a COVID-19 exposure lawsuit must prove either recklessness or willful misconduct on the part of a business. What types of conduct rise to the level of recklessness or willful misconduct? According to the new law, recklessness is a conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party. Willful misconduct is an act or omission that is taken intentionally to achieve a wrongful purpose or in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.
These are high legal standards to meet for any potential plaintiff seeking to recover under a COVID-19 exposure action. It is likely that plaintiffs will argue failure to be in compliance with federal, state, and local health orders, such as compliance with a county mask mandate, constitutes recklessness. Whether such an argument will prove successful remains to be seen.
Should Businesses Consider an Assumption of Risk Warning?
Yes, businesses should consider posting an assumption of risk warning. The new law adds a rebuttable presumption of an assumption of risk by a plaintiff in a COVID-19 exposure claim when the individual or entity engaged in business posts and maintains signs in a clearly visible location at the entrance of the premises or provides written notice containing a warning notice in a “substantially similar form” to the following:
“WARNING
Under Missouri law, any individual entering the premises or engaging in the services of the business waives all civil liability against the individual or entity for any damage based on inherent risks associated with an exposure or potential exposure to COVID-19, except for recklessness or willful misconduct.”
Does the New Law Require Businesses to Have a COVID-19 Policy?
No, the new law is clear that employers are not required to have any written or published policy that specifically addresses the spread of COVID-19. Having such a policy in place, however, may prove beneficial as it places employees on notice of your organization’s health and safety protocols and what is expected of them in the workplace.
Does the New Law Require Employers to Mandate Vaccination or Require Proof of Vaccination?
No, the new law states that employers are not required to have any written or published policy requiring or mandating a vaccination or requiring proof of vaccination. Further, the law specifically states that it shall not be construed to require or mandate a vaccination. Employers remain free to decide whether requiring employees be vaccinated is best for their operations.
Do the New COVID-19 Liability Protections Apply if an Employee is Exposed to COVID-19 at Work?
The new law specifically states that nothing in it affects the applicability of the state workers’ compensation law. An employee exposed at work would presumably fall within the workers’ compensation statute and not under a COVID-19 exposure action.
Thoughts and Tips for Employers:
- Employers should consider posting a COVID-19 notice warning at the entrances of their business locations. At the very least, such a posting will create a rebuttable presumption for assumption of risk in the event an individual later files a COVID-19 exposure action against the business.
- Employers also should consider how policies related to their employees, such as following state and local health orders, might affect an individual’s ability to claim the business was engaged in recklessness for not following those orders.
- While the new law does not require any written or published policies that address the spread of COVID-19, having such a policy in place may provide beneficial as it places employees on notice of your organization’s health and safety protocols and what is expected of them in the workplace.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
