April 29, 2021
On April 28, 2021, Gov. Henry McMaster signed South Carolina’s COVID-19 Liability Immunity Act into law. The state’s employers will now have a defense that they are immune from liability if an employee claims s/he contracted COVID-19 at work.
Under the law, any claim arising from an actual, alleged, or feared exposure to COVID-19 on the premises of a business or from the operations, products, or services provided by a business would be barred by immunity, unless a plaintiff can show by clear and convincing evidence that the business: 1) engaged in conduct that was grossly negligent, reckless, willful, or intentional; or 2) failed to make any attempt to adhere to public health guidance. Healthcare providers are also covered entities under the Act, but a different standard of proof (preponderance of the evidence) applies to certain acts or omissions in the healthcare setting.
To invoke immunity for acts or omissions related to COVID-19, covered entities would need to show “reasonable adherence” to applicable public health guidance. The law does not define “reasonable adherence,” but it does specifically state that “public health guidance” refers to directives provided by South Carolina’s state agencies and includes federal guidance only to the extent that such guidance is referenced by state agencies.
The liability protection applies retroactively; employers are protected from claims arising between March 13, 2020 (the date of the governor’s declaration of a state of emergency) and June 30, 2021, or 180 days after the state of emergency is lifted in the future, whichever is later.
The new law should provide more certainty to employers that have made a good-faith effort to operate while following the recommendations of public health agencies to keep workers and customers safe. It provides broad protection from lawsuits stemming from decisions made during the pandemic so long as the employer reasonably adhered to the guidance.
The law specifically states that it does not limit the availability of claims under South Carolina’s Workers’ Compensation Act. Additionally, although it is unclear, the law is arguably broad enough to preclude state law employment claims, such as wrongful termination lawsuits or whistleblower suits stemming from workplace safety complaints.
South Carolina’s COVID-19 Liability Immunity Act is similar to the North Carolina COVID-19 immunity law enacted during 2020. The North Carolina measure provides businesses with immunity from claims of negligence related to a COVID-19 infection. For health care providers, it provides immunity against malpractice claims stemming from disruptions to normal health care operations due to the pandemic. However, the law provides no protection against grossly negligent conduct or intentional wrongdoing.
Nexsen Pruet continues to closely monitor developments related to the COVID-19 immunity laws. Our Employment and Labor Law team stands ready to provide guidance and counsel on all aspects of the law and how COVID-19 has affected the workplace.