Dining-in-masks

The National Restaurant Association’s Restaurant Law Center now keeps tabs on liability legislation from state to state.

Given the start-stop nature of reopening the economy across the country and ever-changing guidance or mandates on protective measures against the spread of COVID-19, it’s no wonder restaurants are worried about liability.

“Fears of litigation are justified given COVID-19-related wrongful death lawsuits have already been filed against Walmart Inc., JBS NA, Tyson Foods Inc., Royal Caribbean Cruises Ltd., and Quality Sausage,” says Angelo Amador, executive director of the RLC.

What happens if a customer or employee gets coronavirus? Would restaurants also be targeted for civil litigation?

The answer, no surprise, is … it depends.

Commensurate with the patchwork regulations on COVID-19 safety precautions — social distancing, capacity limits, mask wearing, and contact tracing — the landscape of state legislation to protect restaurants from liability is also varied.

Some states have passed protection laws while others are in the process of proposing or voting on such legislation. Restaurant owners need a scorecard to know what’s what, and the RLC now offers just that.

Resource keeps you up to date

The RCL has assembled a state-by-state guide that covers where COVID-19 liability protection legislation stands — at least in states where it’s been discussed, proposed or passed.

Each state listing tells whether legislation has been proposed or passed; its current status; a bill number, if applicable; a summary of the law; any limitations; and a link to the legislation if available.

None of the statutes provide complete immunity to legal liability for exposure to COVID-19 — which, in fact, is not what the industry is seeking — but they do establish a higher bar to bring a successful claim.

Typical limits to liability protection in these statutes include

  • gross negligence
  • willful misconduct
  • failure to make a reasonable attempt to apply public health recommendations

“Ohio’s proposed law (HB 606), for example, provides comprehensive coverage,” says Amador, “which states ‘No civil action for damages for injury, death, or loss to person or property shall be brought [for COVID-19] … unless it is established that the exposure to, or the transmission or contraction of … was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.’”

A varied liability landscape

The difference in approaches to the protection these new laws afford restaurants varies dramatically from state to state. Iowa, for example, appears to cover the broadest group of potential plaintiffs — employees, customers and family members — and limits suits only to cases involving coronavirus hospitalizations, death, or willful intent on the part of the business to make people sick.

Georgia, on the other hand, says restaurants must post a warning sign with the specific language pulled directly from the state’s bill if they want to be protected from liability.

In many states, employees who contract COVID-19 after being exposed to the coronavirus at work are eligible for workers’ compensation but cannot file a civil suit. And in some states, such as Arkansas and Alabama, liability protections have been mandated by the governor’s proclamation and remain in effect only as long as the crisis lasts.

To make sense out of what law is in effect or being proposed in your state, refer to the new resource here. If you don’t see your state listed or you’re aware of proposals in your state, please share them with us by emailing aamador@restaurant.org.