On March 29, 2021, Governor DeSantis signed Florida Statute section 768.38 into law to shield businesses, governments and health care providers from COVID-19 lawsuits. The law is designed to protect these entities from civil liability and limit the number of lawsuits related to the pandemic, as hundreds of lawsuits have been filed in Florida courts since the beginning of the crisis. The new law was enacted to addresses the need to support a strong economy and allow Floridians to return to a pre-pandemic way of life.
According to this new law, a plaintiff must show that a business deliberately ignored the recommended guidelines, plead their case with particularity and have a signed affidavit from a doctor stating, with reasonable certainty, that the injury or death caused by COVID-19 was a result of the defendant's action. In addition, the law only allows recovery if the plaintiff shows the entity was negligent under a clear and convincing evidence standard. The statute was created to apply retroactively at the beginning of the pandemic, a year ago, and sets a one-year deadline for individuals to file claims from the date of enactment or the injury, differing from the standard four-year Statute of Limitations typically applied in negligence cases. However, if the court determines the business made a good-faith effort to comply with standards recommended by government agencies at that time, then it is immune from civil liability.
With regard to Florida workers’ compensation claims, the new law does not change the already existing burden found in Florida Statute section 440 for occupational exposure cases. Claimants already have a higher burden to meet to prove they sustained COVID-19 in the course and scope of work. This law does not appear to change the clear and convincing evidence standard already noted in Florida Statute section 440.151 either. Typically, an employee who caught the coronavirus in the course and scope of work would be required to file a workers’ compensation case in Florida, though there are exceptions to the general rule.
The new legislation, however, could impact gross negligence claims brought against employers as employees could bring a claim in state court for gross negligence if the employer deliberately intended to injure the employee. This was already an existing exception to the requirement that such injuries be litigated in the workers’ compensation system in Florida. The heightened pleadings and evidentiary standards created in this new legislation should provide even further protection for employers sued as a result of employees who allege they contracted the virus due to the business’s gross negligence. It is unclear whether this law could impact vicarious liability cases or other negligence claims related to other aspects of employment law.
Employers should continue to require their employees to abide by federal, state and local guidelines, including CDC and state health care agencies, regarding operations during the pandemic in order to limit their liability for such cases. Considerations including updating handbooks and existing company policies may help further show a good faith effort to comply with existing regulations, further supporting an employer’s immunity from such lawsuits.