Georgia has taken substantial efforts to inoculate businesses from potential liability relating to COVID-19, most notably through its “Georgia COVID-19 Pandemic Business Safety Act” (PBSA), which Governor Brian Kemp signed into law on 5 August 2020.
Broadly, the PBSA provides most businesses, schools and healthcare facilities and providers, with immunity from certain COVID-19 related tort claims, so long as they are not the result of gross negligence, wilful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. Claims covered by the PBSA include:
- The “transmission, infection exposure or potential exposure of COVID-19” resulting in injury or death;
- The “manufacturing, labeling, donating, or distributing of personal protective equipment or sanitizer” under certain circumstances; and
- The acts or omissions by healthcare facilities or providers related to healthcare services or medical care for COVID-19, or interference with the receipt of such services due to COVID-19.
Moreover, the PBSA creates a presumption that a customer voluntarily assumed the risk of exposure to COVID-19, so long as the business puts out a sign reading as follows (and meeting certain presentation requirements):
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.”
This warning does not protect against claims for gross negligence, wilful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, but does protect against lesser claims.
The PBSA appears to apply to employees as well as customers and other third-parties. As such, employers can greatly limit their tort liability by availing themselves of the PBSA’s notice provisions, although it bears noting that this would not alleviate the employer of any obligations it may have under OSHA or other applicable federal laws. In addition, the PBSA further provides that it does not affect Georgia’s workers’ compensation laws, allowing employees who become ill with COVID-19 to still apply for benefits.