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Florida Legislature Imposes High Standard for Claims Against Businesses Based on Damages from COVID-19

By Rocio Blanco Garcia and Stefanie Mederos

March 31, 2021
3 minute read

On March 29, 2021, Governor Ron DeSantis signed into law Florida Statute 768.38, intended to protect businesses, governmental entities, schools and other persons and entities from COVID-19 lawsuits if they made a good-faith effort to follow guidelines to prevent the spread of the coronavirus.

Recognizing the financial impact the pandemic has had across most industries, the statute imposes a high pleading standard and requires certain preliminary findings before a COVID-19-related claim filed after March 29, 2021 can proceed. Specifically, a plaintiff suing a person or business¹ for a claim arising from or related to COVID-19, including personal injury, wrongful death and other claims for damages, must file a complaint pled with specificity and accompanied by an affidavit of a physician attesting to the physician’s belief that the injury at issue was the result of the defendant’s acts or omissions. A complaint that fails to meet these requirements is subject to dismissal without prejudice. Further, the court must make a preliminary finding whether the defendant made a good-faith effort to comply substantially with authoritative or controlling government-issued health standards or guidance when the cause of action accrued. If the defendant made such a good-faith effort, it is immune from civil liability. On the other hand, if the defendant did not make such a good-faith effort, the civil action may proceed. In order to prevail, however, the plaintiff must show by clear and convincing evidence that the defendant acted with gross negligence. The new law can operate to significantly shorten the statute of limitations generally applicable to personal injury and wrongful death claims (generally four and two years, respectively) where the case arises from or is related to COVID-19.

While Florida employers generally are protected by workers’ compensation law from lawsuits their employees assert for injuries they sustain in the workplace, those protections do not extend to employers that exhibit gross negligence. Moreover, the protections created by the workers’ compensation laws only relate to the relationship between employers and employees, such that they do not extend to other persons or entities coming into contact with a business. Since employers remain liable for gross negligence, to employees and outsiders alike, businesses must remain vigilant in ensuring that their employees follow CDC and local government guidelines to prevent the spread of the coronavirus. Doing so will help avoid having to defend past the pleadings stage lawsuits that could meet the requirements of Section 768.38. As a result, employers that have not already done so should consider updating their employee handbooks and policies to require compliance with authoritative or controlling government-issued health standards or guidance to prevent the spread of COVID-19. Those handbooks or policies could be used as evidence of good-faith efforts in any lawsuit filed under Florida Statute 768.38.²

¹ It is important to note that certain health care providers fall under the simultaneously enacted Section 768.381, which has different requirements from those contained in Section 768.38.

² Notably, given the passage of Section 768.38, it is unlikely that the liability provisions of Florida HB 1617, which is still in the legislative process, will be enacted. The liability provisions of HB 1617 are intended to create a cause of action against any person, including health care workers, who knew they had the virus, or willfully, knowingly or recklessly exposed the plaintiff to the virus, entitling the exposed person to at least $1,000 in compensatory damages, as well as reasonable attorney’s fees and costs. In contrast, Florida Statute 768.38 does not provide a minimum damages entitlement.