On March 29, 2021, Florida Governor Ron DeSantis signed into law one of the nation’s first laws providing limited immunity to business entities against claims of COVID-19-related damages, injuries or deaths. The law sets forth different standards for immunity for private businesses and certain entities such as charitable organizations than for health care providers.
With respect to the former group, which includes private employers other than health care providers, the law requires a claimant to submit an affidavit signed by a physician that attests to the physician’s belief, within a reasonable degree of medical certainty, that the claimant’s COVID-19-related damages, injury or death occurred as a result of the defendant’s acts or omissions. A claimant also bears the burden of proving the defendant failed to make a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued. Absent a showing of at least gross negligence – proven by clear and convincing evidence – a business entity will not be liable for any act or omission relating to a COVID-19 related claim.
Claims against “health care providers,” which are defined broadly under this law, may be easier for claimants to pursue. For example, an affidavit from a physician is not required from the claimant. Likewise, a claimant does not need to prove that the health provider was grossly negligent in failing to make a good faith effort to substantially comply with health standards or guidance. Rather, a health care provider may raise a number of affirmative defenses – for which the health care provider bears the burden of proof – by showing it substantially complied with government-issued standards or other relevant guidance.
The new law also implements a one-year statute of limitations that begins to run on the later of March 29, 2021 (the date the law was enacted) or the date the claim accrued.
The takeaway for both business entities and health care providers is that compliance with relevant standards and guidelines is crucial to take advantage of the statute’s immunity provisions. Businesses must not “let up their guard” in monitoring federal, state and local orders pertaining to COVID-19 safety measures or the CDC’s frequently-updated guidance, and in taking good faith measures to comply with them.
Should you have any questions regarding Florida’s business immunity law, please contact Keith L. Hammond, Esq. at (407) 730-9909.