Edward Lindsey of Dentons. (Courtesy photo)

Over the past two months, Georgia and the rest of the nation have taken extreme but necessary steps to combat the COVID-19 pandemic. People have been ordered to shelter in place, businesses have been shuttered and unemployment has skyrocketed. When and where the economy will hit rock bottom is unknown. Nationwide, the U.S. economic output dropped 4.8% in the first quarter of this year, the steepest drop since 2008, and that drop does not include April. In Georgia, at the height of the Great Recession in 2009, there were 361,000 new unemployment claims in the first 15 weeks of that year. This year there were over 940,000 new claims in the same time period.

With an easing last week of Gov. Brian Kemp's shelter-in-place order and new guidelines for how businesses should operate and maintain social distancing, business owners—including our grocers, barbers and hair stylists, auto mechanics, drug store owners, etc.—are cautiously considering whether and how to reopen for business. One thing they should not have to weigh in deciding whether and how to operate is potential civil negligent tort liability for the COVID-19 outbreak. As we have come to know, this disease is easily transmittable even by people who are asymptomatic, and no method to prevent its transmission is completely effective absent a widely distributed vaccine, which is still months away at the earliest.

Georgia law has long recognized that certain activities should not be subject to normal negligent tort liability. Property owners have good faith immunity for any injuries to invitees "caused by an inherent risk associated with agritourism, hunting, or fishing activity" (O.C.G.A. § 51-3-31). Medical practitioners who deliver emergency aid at the scene of an accident are not "liable for any civil damages as a result of any act or omission by such person in rendering emergency care" (O.C.G.A. § 51-1-29). Volunteers participating in sports activities run by nonprofits are immune from civil liability if such person was "acting in good faith" (O.C.G.A. § 51-1-201). In addition, good faith immunity has been extended to individuals rendering aid during natural disasters (O.C.G.A. § 51-1-29.2), school volunteers (O.C.G.A. § 51-2-30.3), firemen "performing duties at the scene of an emergency" (O.C.G.A. § 51-1-30), school personnel for communicating "information in good faith concerning drug abuse by any child to that child's parents" (O.C.G.A. § 51-130.2), firearm instructors who lawfully train individuals in the safe use of firearms (O.C.G.A. § 51-1-55) and security officers at nuclear power plants in the performance of their duties in compliance with a "nuclear security plan" (O.C.G.A. § 51-1-30.4).

Some of these safe-harbor immunities involve volunteers, but others cover businesses operating in higher risk areas we recognize as important to a functioning society. In the midst of this worldwide health crisis and the resulting severe economic fallout, all business owners today—especially small businesses that we rely on to provide the goods and services needed in an integrated society—are in turmoil with their financial business investment and years of sweat equity being placed at dire risk. Not opening subjects them to bankruptcy. Deciding to open should not subject them to the added stress of potential legal liability as a result of a sickness beyond their control to prevent. Furthermore, for those businesses that choose to reopen, it is in our best interest that they do so in conformance with the best available safe health practices, including those outlined by our elected leaders and government departments.

Therefore, when the Georgia General Assembly returns in June to tackle its remaining work in the 2020 regular session, it is important that it include the passage of a COVID-19 Safe Harbor Act that protects businesses by giving them good faith immunity. Good faith should include abiding by safety precautions mandated by the governor in his executive orders or recommended by other relevant state authorities such as the Department of Public Health.  This immunity would not, of course,  protect against conduct which is reckless, willful or intentional.

Such legislation will give businesses a clear road map on what is permissible and begin the slow progress to moving us toward the "new normal" that awaits us.

Edward Lindsey is a partner in Dentons' public policy practice and serves as the head of the firm's Georgia State government affairs team. A Republican, he served 10 years as a Georgia state representative, including three terms as the House majority whip, and worked for 26 years at Goodman McGuffey Lindsey & Johnson, which he cofounded in 1990.