Florida Governor Signs COVID-19 Liability Shield

By: Andrea de Oña

On March 29, 2021, Florida Governor Ron DeSantis signed into law Florida Statute 768.38, granting significant protections to business entities, educational institutions, governmental entities, and religious institutions from claims related to COVID-19 if they made a good faith effort to follow guidelines to prevent the spread of the coronavirus. The law is effective immediately and applies to actions filed after March 29, 2021.

Recognizing the financial impact that the pandemic has had across the State of Florida, the new law aims to dissuade potential claimants from filing meritless claims for personal injuries, wrongful death, or other damages allegedly due to COVID-19 exposure in a few key ways.

  1. Imposing heightened pleading requirements on plaintiffs bringing COVID-19-related claims. Specifically, the plaintiff must plead their lawsuit with particularity and provide the court with a signed affidavit from a Florida-licensed physician attesting to the physician’s belief, within a reasonable degree of medical certainty, that the defendant caused the plaintiff’s COVID-19-related injuries. The judge, not a jury, must then determine whether the plaintiff complied with the above filing requirements, and whether the defendant made a good faith effort to substantially comply with any authoritative government-issued health standards or guidance at the time the cause of action accrued. During this stage, admissible evidence is limited to evidence related to the defendant’s good faith effort. If the court determines that the complaint fails to meet the above filing requirements, the court must dismiss the case without prejudice. If the court determines that the defendant made a good faith effort to comply with any authoritative government-issued health standards or guidance at the time the cause of action accrued, the employer is immune from liability . If the court finds that the defendant did not make a good faith effort, the case may proceed.  
     
  2. Increasing the burden of proof on plaintiffs bringing COVID-19-related claims. Plaintiffs must prove by clear and convincing evidence that the defendant committed at least gross negligence. A defendant cannot be held liable for ordinary negligence.
     
  3. Establishing a shortened time period within which plaintiffs must bring COVID-19-related claims. Plaintiffs must commence their COVID-19-related lawsuits within one year after the cause of action accrues or within one year after March 29, 2021.

Despite the significant liability protections Florida’s new law provides to businesses, employers remain potentially liable to their employees for gross negligence. As such, employers should make sure to review current CDC, OSHA, federal, state, and local government guidance to ensure their employees follow the recommended procedures for preventing the spread of the coronavirus. Employers should also consider updating their COVID-19 policies and employee handbooks, which could be used as evidence of good-faith under Florida’s new law.

For more information on this new law, contact the author of this post. Visit our COVID-19 Response Resource Center for additional analysis on the many areas of law impacted by the pandemic. You can also subscribe to this blog to receive email alerts when new posts go up.

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