Proposal would grant Nevada businesses legal immunity from COVID lawsuits

CARSON CITY, Nev. — Businesses — but not health facilities — would get immunity from liability for death or injury stemming from COVID-19 if they substantially followed directives aimed at preventing the spread, according to a draft expected to be introduced in the Legislature’s special session.

The bill language, which was obtained by The Nevada Independent and first reported by the Las Vegas Review-Journal, outlines litigation protections from COVID-19 related liability for governmental entities, schools, nonprofits and major businesses if they meet “controlling health standards” outlined in the bill.

It’s the culmination of a weeks-long effort by some of the state’s largest industries, including the casino resort trade group Nevada Resort Association, to enshrine liability protections in law amid lessened business demand and declining profits for the state’s tourism-driven economy. They have argued frivolous lawsuits linked to COVID-19 could put them out of business.

But the concept of liability protection has also been opposed by progressive groups and trial attorneys, who say it lets potentially dangerous or unsafe behavior off the hook by protecting them from litigation. It’s also raised the ire of health care interests, who say they should get the same protections as other businesses do.

But the bill also contains language on the liability protections with enhanced worker safety provisions, including many provisions asked for by the Culinary Workers Union Local 226 over the past weeks.

The bill draft request lays out in significant detail health and safety requirements for hotels and casinos. Upon request of the Nevada Gaming Control Board, health districts could make recommendations about public health matters and be granted the authority to enforce those regulations.

For businesses, immunity would apply to those that are adhering to federal, state or local laws, regulations or ordinances, or written document, order or publications presented by government agencies or regulatory bodies.

For a lawsuit related to COVID-19 death or injury, plaintiffs are required to plead “with particularity,” a technical legal term that essentially means they must meet a higher evidentiary bar in order to bring a claim.

Any lawsuits can be dismissed if the challenged entity is in “substantial compliance with controlling health standards,” a term introduced in the bill that is defined as a “good faith effort” to comply with federal, state or local laws or regulations related to COVID-19 mitigation or protection. The bill also states that “isolated or unforeseen events of noncompliance” with the health standards to not demonstrate noncompliance — which likely means individual cases are not enough for litigation, instead requiring plaintiffs to identify a pattern.

“If the entity was in substantial compliance with controlling health standards, the entity is immune from liability unless the plaintiff pleads sufficient facts and proves that: (1) The entity violated controlling health standards with gross negligence; and (2) The gross negligence was the proximate cause of the plaintiff’s personal injury or death,” the bill draft request says.

The bill also authorizes the secretary of state’s office to suspend the business license of any entity found to be violating the “controlling health standards.”

Worker protections

The bill draft request also requires many of those major businesses to provide substantial worker protections, many of which were identified as priorities by the politically powerful Culinary Workers Union Local 226 over the past weeks.

Proposed language calls for all hotels to establish and maintain a written COVID-19 response plan for both employees and guests that includes:

• Designation of a person to oversee and carry out the plan
• Require each new employee or employee returning to work be tested for COVID-19, if available
• Designate an area and require daily temperature screenings and questions related to exposure to the virus for all employees
• Requires each business to notice each employee who is known to have contact with a guest or other employe who has tested positive for COVID-19 within 24 hours or as soon as practicable. Any employees notified about possible contact with a possible case are required to undergo testing, and receive at least three days of paid time off while waiting for testing results (more days can be taken off in the event of delays in testing)
• Prohibits any employer told by an employee that they are experiencing COVID-19 symptoms from requiring them to go to work while awaiting testing results, including similar paid time off requirements
• Requires employers to give any employee who is working or recalled to work when they are diagnosed with COVID-19 at least 14 days off, including at least 10 days paid. Employers can petition the state to increase or decrease the number of days off, if they are consistent with federal health guidelines
• Requires any guest who tests positive for COVID-19 while at a business to leave if practicable

The measure would require cleaning standards be adopted such as daily cleaning of high-touch objects in rooms, including remote controls, touch screens and toilets. Outside of the rooms, the regulations must call for regular cleaning of key cards, tabletops, exercise equipment and more.

The bill also allocates $2 million to the Southern Nevada Health District and $500,000 to the Washoe County Health District to implement and enforce provisions of the bill.

The act would take effect immediately and would last until the end of the governor’s state of emergency, or July 1, 2023, whichever comes later.