Delaying Covid protections may make it too late to help businesses

LIABILITY

We’ve all heard the expression, “There’s no point in closing the door after the horse has already left the barn.” It’s a warning to take action before it’s too late. Preventing a problem in the first place is clearly the ideal solution. Yet the New Hampshire Legislature has demonstrated several times it’s content to wait for a problem to manifest itself before taking steps to implement an obvious fix.

I’m talking about several legal safe harbor bills in both the House and Senate that have been “retained.” This means the Legislature will hold on to the bills over the summer and into the fall with the possibility that they may (or may not) be acted on next year.

The three bills that focus on this challenge each provide limited immunity against lawsuits from anyone claiming he or she contracted Covid-19 at a place of business, church, school or college campus. This protection would only apply to enterprises who are “doing the right thing” by making good-faith efforts to comply with federal and state health and safety guidelines. The very real exposure to unwarranted litigation is a top concern for businesses across the state, like mine.

The Mountain Club on Loon has done and continues doing everything we can to ensure our enterprise is safe for employees, guests, contractors, and others, while remaining open during the pandemic. A spurious lawsuit against us could cost as much as $50,000 to defend against. That’s money that would be better utilized keeping our people employed.

If no Covid-19 lawsuits are ever filed in New Hampshire, then passing one of these bills now will do no harm. But if such lawsuits are coming, and it’s likely they will, the law will provide valuable protections for employers.

Without safe harbor legislation, lawsuits can be freely filed against enterprises of all kinds, even those doing everything possible to mitigate the risk of Covid-19 infection. Many enterprises, like mine, have gone above and beyond recommended health and safety guidelines.

And even though we’d likely win if sued, there’s a cost. Whatever the amount, we’d be forced to choose between just paying the claim or spending two to three times as much to defend against it. That’s a lose-lose situation for any enterprise, forprofit or non-profit.

Opponents claim a legal safe harbor would allow businesses to reduce their protections during the pandemic. One attorney even said, “The only people that can be sued are essentially people who have licked the face of every customer.”

This makes for a great sound bite, but it’s simply not true. In the plain language of the safe harbor legislation, any business that reduces protocols below the standards set by state and federal guidelines is not protected and can be sued if someone catches Covid-19. That’s as it should be.

Opponents also claimed creating a legal safe harbor is really about protecting insurance companies. This ignores the fact that most insurance policies have exceptions for infectious diseases. If a business is sued over Covid-19 infection, it is on the hook for the entire cost unless their policy includes such protection. Most enterprises do not have such coverage.

After the November election, I expected the newly elected Legislature would be more willing to help address challenges facing employers like Mountain Club on Loon. Instead, they’re poised to put a top business concern in limbo for a year. Delaying safe harbor protection will likely mean it’s too late for many businesses when the lawsuits start coming.

The Business and Industry Association, on whose executive board I serve, has led a coalition of nearly three dozen chambers of commerce and trade associations across the state, pushing for enactment of a legal safe harbor. They’ve been trying to accomplish what 23 other states have already achieved. The Legislature should close the barn door while the horse is still inside.

Jeff McIver is president & general manager of the Mountain Club on Loon Resort and Spa.