In an effort to flatten the curve of pandemic-related litigation, Alabama Gov. Kay Ivey (R) signed a proclamation on May 8, significantly limiting the liability of employers for COVID-19-related claims. Using powers granted by the Alabama Emergency Management Act, Gov. Ivey put all but the most egregious claims in quarantine by granting near immunity against negligence claims and isolating defendants from many claims for non-economic damages.

The order raises the burden of proof for plaintiffs. In civil cases, a plaintiff usually has to establish claims by a “preponderance of the evidence,” meaning that the plaintiff has to show that the defendant “more likely than not” caused the harm to the plaintiff. However, Gov. Ivey’s order provides that plaintiffs trying to show that a business caused a coronavirus infection must establish that by “clear and convincing” evidence, which is a more demanding standard. Establishing those claims is likely to be a daunting task with the pandemic being so prevalent in society. The order also eliminates simple negligence claims by requiring any claim to be based on “wanton, reckless, willful, or intentional misconduct.”

And even if a plaintiff passes those significant hurdles, the damages available for such claims are limited. If the claim does not involve “serious physical injury,” then damages are limited to actual economic compensatory damages. “Serious physical injury” is defined as death, hospitalization of at least 48 hours, or permanent impairment. Thus, even if the plaintiff without a serious physical injury meets the high standard of proof required to establish fault, the recovery could be minimal. Non-economic damages -- such as mental anguish and emotional distress -- are not available, and punitive damages are available only in wrongful death cases, which is consistent with existing state law.

Even negligence and premises liability claims that predate the order require the plaintiff to show, by clear and convincing evidence, that the defendant did not “reasonably attempt” to comply with then-applicable public health guidance. Businesses that made a good faith effort to follow health guidelines in the state’s earlier orders and from Alabama’s Public Health Officer will have a strong defense to any coronavirus-related claims. These prior orders have ranged from closing certain types of businesses to requiring or encouraging social distancing inside businesses and limiting gatherings to fewer than 10 persons. If a claim predates the order and does not involve serious physical injury, the plaintiff is limited to economic, compensatory damages, just as with claims that arise after the order. There is no recovery for mental anguish or emotional distress, or other non-economic damages, unless the plaintiff was hospitalized for at least two days or suffered a permanent impairment. As with claims asserted after the order, punitive damages are not recoverable except in cases of wrongful death.

The order states that it does not affect workers’ compensation benefit claims. The existing preponderance of evidence standard and statutory remedies are available to employees claiming they were infected by coronavirus through occupational exposure. The order also preserves the significant defenses and limitations contained in the Alabama Medical Malpractice Act.

The order is retroactive to March 13, the date that the public health emergency was declared, and will be in effect until that declaration is terminated.

Although Gov. Ivey stopped short of issuing a vaccine to employers against all COVID-19-related claims, Alabama businesses (and their insurers) can rest a little easier knowing that they are much less likely to be held liable if a customer or employee claims they contracted COVID from the business.

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