What do businesses need to worry about relative to tort liability for COVID-19? In other words, if one of your patrons contracts COVID, either while on your property or while interacting with one of your employees, could you possibly be sued for that?

Well, the Michigan Legislature has passed a law that addresses just this issue. In October, it passed a law called the Response and Reopening Liability Assurance Act. The relevant language states as follows:

A person who acts in compliance with all federal and state statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm, is immune from liability for a COVID-19 claim.

In other words, if a business is following the letter of the law, and a patron gets sick and/or dies from COVID due to contact with that business, the patron or their family will not be able to successfully sue that business for negligence.

However, notice how the language of the statute refers to “all” laws and regulations. This is an important phrase. It means that if any regulation is not being followed to the letter of the law, the business may lose this legal protection, and they may be left open to a successful lawsuit from a sick patron. Furthermore, many insurance companies may refuse coverage for COVID claims, making the situation even scarier for businesses.

With all that said, it is important to remember, any claimant hoping to go after a business for a COVID claim is going to have to prove that he/she contracted it while interacting with the business—that’s no small task. In addition, most people who get COVID-19 recover fairly quickly and do not have the sorts of damages that would warrant bringing a negligence lawsuit.

The best things for Michigan businesses to do in this environment is to stay on top of the MDHHS orders that are being issued from time to time. It is not easy, as these orders seem to change every month or less. It may be worthwhile to consult with an attorney if you are considering action that you believe may run afoul of the guidelines. Showing you spoke to your lawyer and tried in good faith to remain legally compliant may be a life-saver down the road.