North Carolina remains in Phase 2 of its reopening plan at least through August 7, a timeframe recently expanded by Governor Cooper.  With new legislation and executive orders enacted frequently, many North Carolina business owners have questions about reopening and what steps they are required to take as they struggle with reopening plans.  

What does North Carolina’s “COVID 19 Liability Safe Harbor” provide?

Governor Cooper signed House Bill 118, titled “COVID-19 Liability Safe Harbor,” into law on July 2, 2020. This law grants limited immunity to individuals and entities for any act or omission resulting in contraction of COVID-19, unless the act or omission amounts to gross negligence, willful or wanton conduct, or intentional wrongdoing.   

In addition to the grant of limited immunity,  the law requires businesses to post or provide “reasonable notice” of actions taken by the business to reduce the risk of COVID-19 transmission on the premises of the business, although it also makes clear that the grant of immunity extends to a failure of an individual to comply with the rules, policies, or guidelines contained in the required posted notice. The grant of immunity applies to claims arising within 180 days after the expiration or recession of the March 10, 2020, Executive Order No. 116, but it does not apply to claims seeking benefits payable under the Workers’ Compensation Act.

How is HB 118 different from SB 704?

On May 4, 2020, Governor Cooper signed Senate Bill 704 into law. Among other things, the bill provided “Limited Business Immunity,” which only covered essential businesses as defined in Executive Order 121. Covered essential businesses received immunity from civil liability with respect to claims from any customer or employee for any injuries or death alleged to have been the result of contracting COVID-19 as a result of interactions with the business.

The law also protected emergency response entities with respect to claims from customers, users, or consumers for any injuries or death alleged to have been caused as a result of the COVID-19 pandemic or while doing business with that entity. Importantly, emergency response entities included businesses and not-for-profit organizations that changed their business model to help the pandemic response efforts and manufactured, produced, or distributed personal protective equipment, testing equipment, or ventilators, or processed COVID-19 testing results.

HB 118 supplements SB 704. The new legislation provides broader, more sweeping protections to encourage and enable North Carolina businesses to reopen.

What about the requirement to wear masks?

A few weeks ago, attorney Marc Gustafson answered questions from employers seeking to reopen and shared that employees could be required to wear personal protective equipment such as masks. Wearing a mask or face covering is required throughout North Carolina until August 7th, 2020, per Executive Orders 147 and 151. Unless an exception applies, most businesses must require employees and customers to wear face masks when they are or may be within six (6) feet of another person. Businesses must enforce this rule and require patrons to wear face coverings, unless there is a qualifying exemption, or the business may be liable for a citation. In determining if any exemptions apply, the business is allowed to rely on a patron’s stated exception that excuses them from wearing a face covering.

Can a business enforce the face covering requirement to protect other patrons and employees?

Although face-covering requirements cannot be criminally enforced, businesses are still able to seek assistance to protect other patrons and employees. If a business does not allow entry to an employee, customer, or patron because that person refuses to wear a face covering, and that individual then enters the premises and refuses to leave, the business can ask law enforcement personnel to enforce trespassing laws against the offending individual. A business considering this type of enforcement should also consider alternative ways to provide goods, such as curbside pickup or delivery, so they do not discriminate against those individuals unable to safely wear masks or face coverings.

About the Authors: Justin Hardy and Elizabeth Napps

Justin M. Hardy is an attorney at the Winston-Salem law firm of Bell, Davis & Pitt. Justin focuses his practice on property tax appeals, intellectual property law, tax controversy law and general business law. Justin has practiced law in Winston-Salem since 2008, after earning his law degree at Michigan State University College of Law. He is on the Community Advisory Board of 88.5 WFDD, the William G. White Jr. Family YMCA Volunteer Board and the Tax Section Council of the North Carolina Bar Association.

Elizabeth Napps is a rising second-year student at Wake Forest University School of Law. She earned her Bachelor of Arts in history from the University of Virginia. Prior to law school, she worked in corporate governance in the healthcare sector in Richmond.