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Florida business group offers plan after DeSantis calls for employer liability protections

By John Haughey | The Center Square Sep 25, 2020 

DeSantis Miami

Florida Gov. Ron DeSantis speaks during a news conference at a drive-thru 
coronavirus testing site in front of Hard Rock
Stadium on Monday, March 30,
2020, in Miami Gardens, Fla.

Wilfredo Lee / AP

(The Center Square) – Florida businesses have been frustrated with Gov. Ron DeSantis’ reticence in addressing their COVID-19 liability concerns.

The governor has dismissed requests since April for a special session to provide clarity on what potential liability risks are for employers during the pandemic.

DeSantis broke his silence this week, calling for lawmakers to adopt a liability protection bill for “run-of-the-mill business” in a special session when they come to Tallahassee Nov. 17 for a post-election organizational meeting.

“There is a lot of concern about liability,” DeSantis said. “I believe it holds the economy back.”

Within a day of DeSantis' remarks, a 40-member task force of Florida business leaders submitted a plan for the governor to grant liability exemptions for essential businesses in an executive order.

RESET Task Force’s proposal also called for lawmakers to adopt bills in 2021 raising the culpability bar in COVID-19 claims and encoding “rebuttable presumption” into state code.

RESET, founded in April by Publix Vice President of Risk Management Marc Salm and Florida Justice Reform Institute President William Large, has been meeting through the summer to develop its proposals.

It is co-chaired by Associated Industries of Florida (AIF) Senior Vice President of State and Federal Affairs Brewster Bevis, Florida Retail Federation (FRF) President and CEO Scott Shalley, National Federation of Independent Business (NFIB) Florida Executive Director Bill Herrle and Florida Restaurant and Lodging Association (FRLA) President and CEO Carol Dover.

RESET recommends the governor grant liability exemptions to essential employers via executive order, such as hospitals, doctors’ officers, dentists’ offices, urgent care centers, clinics, rehabilitation facilities, nursing homes, assisted living facilities, child care facilities, grocery stores, farmers’ markets, farm and produce stands, food banks, convenience stores, gas stations, auto supply stores and banks.

For businesses not “essential,” RESET proposes lawmakers elevate evidentiary standards for COVID-19 claims from simple negligence, which requires “greater weight of the evidence,” to gross negligence, which requires “clear and convincing evidence.”

RESET also wants lawmakers to put into law “rebuttable presumption” that a business did not cause someone’s infection without “clear and convincing evidence.”

DeSantis refrained from commenting on the liability because he thought it would be addressed in a second federal COVID-19 relief package that remains in limbo.

“The grand bargain was supposed to be liability protection for business and then aid to states,” he said. “The Dems wanted aid to states, and the Republicans wanted liability. But that hasn’t happened.”

DeSantis said it is now a state priority since there’s no guarantee Congress will address the issue.

“We’ve never done that with any other type of virus where you could be sued,” he said, noting only if “there’s some stuff going on that’s a little different than run-of-the-mill business” should there be liability.

“This is the first time I have heard the governor publicly support this, but I think he supports getting the economy open and getting everyone back to work,” Large said. “He’s a trailblazer in this respect. He is leading the way on the need to protect businesses from difficult causation lawsuits about how COVID-19 was transmitted. Businesses are in fear that if they open up they are going to be sued.”

NFIB’s Herrle said uncertainty is creating hardships.

“Business owners have been thrust into the role of being a public health officer. Every day they run their business they need to make decisions about whether Joe can come into work because he says he’s not feeling well. Should we send Joe home?” Herrle said. “Or, Joe comes in and says, ‘My wife, Mary, tested positive.’ So do we send Joe home?”

There are “hundreds of decisions (businesses) make being driven by COVID,” he said. “So we are very happy to see him do this.”