North Dakota may join a group of several other states that have passed, or are considering, COVID-19 liability protection for businesses.
A bill that would nearly eliminate lawsuits brought against business owners over exposure to COVID-19 was introduced to the House of Representatives in early January, by a group of six lawmakers, including Corey Mock, a Democrat who represents Grand Forks’ District 42. The bill passed in the House by a wide margin and has since been sent to the state Senate for consideration.
The state branch of the National Federation of Independent Business, a small business advocacy group, applauded the move in a Feb. 5 news release.
“This legislation is a no-brainer,” said North Dakota State NFIB Director Alison Ritter. “Small businesses create most of the net new jobs. It only makes sense to protect them from frivolous legal action.”
House Bill 1175 would bar a person from taking civil action for exposure to the illness against a business owner or premises operator. Health care workers would be shielded from any response to COVID-19 that contributes to the death or injury of a person. The protected groups, however, need to be in “substantial compliance” or consistent with federal or state COVID-19 mitigation policies. The groups also would not be protected for any act that constitutes “actual malice,” intentionally exposing a person to the illness, or “willful and wanton” misconduct.
If passed, the bill would be applied retroactively to Jan. 1, 2020, and would stay in effect through July 31, 2023, at which time it would expire.
Under the bill, people would not be allowed to sue a supermarket or hardware store, for example, if they contract the coronavirus there, as long as those businesses were following the state’s Smart Restart guidelines. The same goes for employees, who would not be able to bring civil action against an employer, as long as the employer demonstrates what Ritter called “best practices as far as COVID-19 precautions.”
“What this bill doesn't do, is it doesn't say that someone can't bring a lawsuit, but there just has to be a really high bar of negligence to sustain one,” Ritter told the Herald.
The bill passed in the state House by a vote of 77 to 17, but not all Grand Forks lawmakers sided with it. While Mock, one of the bill’s sponsors, voted in favor, representatives Mary Adams and Zachary Ista, both Democrats representing District 43, voted against it. Mock did not return calls for comment.
Adams told the Herald she thought the bill was too broad, contained too many “unintended circumstances” and raised questions about medical malpractice.
“If a doctor did something that was wrong, and he says ‘well, no, it was because of COVID,’ he can't be sued. Does malpractice go away then?” Adams said.
While business advocacy groups, including the Greater North Dakota Chamber, spoke in favor of the legislation, others, including The North Dakota Association for Justice, AARP and AFL-CIO, spoke against it.
Adams also said persuasive testimony against the bill came from an attorney who said judges already determine whether or not a case has merit. Her faith in the justice system led her to oppose the bill, she said.
Ritter said she had not heard of any lawsuits in the state being filed against a business for being exposed to COVID-19. Still, she said the legislation is necessary to provide regulatory certainty for business owners, and it would reassure them they are protected under the law. North Dakota’s NFIB branch has more than 2,200 members, most with an average of 10 employees; 94% of the group’s members support the measure.
“There's clearly a need for this legislation,” she said.
According to Ritter, North Dakota’s coronavirus liability legislation was modeled on Iowa’s, which the state adopted in June 2020. More than 30 states have enacted similar legislation or are considering it.