On June 29, 2020 the Georgia General Assembly sent to Governor Brian Kemp for his approval the Georgia COVID-19 Pandemic Business Safety Act. One of the final bills passed by the Georgia General Assembly during its 2020 Legislative Session, the Act addresses the legal risks and liabilities of operating a business during the unprecedented COVID-19 pandemic. In passing the Act, the State of Georgia joins an increasing number of states in attempting to address the risks of operating during COVID-19. While it is expected that Governor Kemp will sign the Act, the Act will nonetheless become effective on August 7, 2020 if he chooses not to approve, and does not veto, the Act.
The Act provides that no healthcare facility, healthcare provider, entity or individual shall be held liable for damages in an action involving a “COVID-19 liability claim” unless the claimant proves that the actions of such entity or individual “showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” The term “COVID-19 liability claim” broadly encompasses any cause of action for the transmission, infection, exposure or potential exposure of COVID-19 at any healthcare facility or on the premises of any healthcare provider, entity or individual or caused by any healthcare provider’s or individual’s actions. Protection also is provided to certain manufacturers and distributors of personal protective equipment and sanitizer as well as healthcare facilities and providers in delivering healthcare services, including where the response to COVID-19 reasonably interfered with such delivery. “Entities” broadly include private businesses, religious and educational organizations, and political and governmental bodies, and their partners, managers, officers, directors, employees and officials. “Premises” include all real property in Georgia, whether “residential, agricultural, commercial, industrial, or other”.
The Act creates a rebuttable presumption that a claimant assumed the risk of contracting COVID-19 where certain actions are taken by the defendant entity or individual. Premises owners may place a sign in at least one-inch Arial font at the premises point of entry and apart from any other text warning those entering the premises as follows:
“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.”
Alternatively, any receipt or proof of purchase for entry or attendance issued to a claimant (including an electronic or paper ticket or wristband) may include a statement in at least ten-point Arial font and placed apart from any other text warning those entering the premises that:
“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.”
The rebuttable presumption applies only to the ordinary negligence claims for which the Act provides immunity. The Act provides that failure to post warnings is not admissible in evidence in a COVID-19 liability claim. On the other hand, evidence of the warnings should be admissible to prove assumption of the risk.
The Act applies to causes of action accruing until July 14, 2021. The immunity provided by the Act is in addition to, and does not limit in any way, any other immunity provided by state or federal law. In addition, the Act does not modify or supersede Title 16 (relating to crimes and offenses), Title 31 (relating to health or any state regulations related thereto) Chapter 9 of Title 34 (relating to workers' compensation) or Chapter 3 of Title 38 (relating to emergency management). The Act will be codified at O.C.G.A. § 51-16-1 et seq.
