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Gephardt: Businesses Grapple With Conflicting State, CDC Health Guidelines

SALT LAKE CITY, Utah – Over the past year, some business owners have told the KSL Investigators they are concerned about what happens if their business becomes a COVID-19 hotspot. Their concern wasn’t just health or even bad public relations. Some worried they could be sued and go broke.

 Lawsuits have been filed all over the country against businesses, specifically those who refused to enforce mask-wearing, social distancing, or other health protocols. 

Now with most Utah state health COVID-19 rules ending, should they be more or less worried? 

You Ask, KSL Investigates. 

“Of course, anybody can sue anybody for anything,” said Chris Dexter, a lawyer. “Whether they’ll prevail is another matter.”

Dexter said that as long as a business is following current health guidelines, they are pretty well insulated.

“If they are following local, state, and CDC guidelines, that does formulate kind of a safe harbor for that business,” he said.

 Following local, state and CDC guidelines is easier said than done because the guidelines don’t always match. For example, the CDC still recommends masking up indoors while Utah’s health department says it’s no longer a requirement. 

“There are some traps for the unwary because, as you know, there are quite a few gaps between the CDC and the 50 states,” Dexter said. 

The short answer, Dexter said, is that lawyers really don’t know yet if businesses will be held liable for COVID-19 outbreaks traced back to the business. 

“We don’t have legal cases that have gone through the courts at this point, that have determined everybody’s rights and responsibilities,” he said. “I would advise businesses to make sure they take into account what their business is, proximity of customers and clients, how they interact with the customer.” 

As KSL-TV has reported, proving where COVID-19 was contracted is very tough, especially with community spread. Because of that, Dexter for one has told potential clients they likely don’t have a winnable case.  

I’ve had probably 12 people come to my office for a free consultation and talk about exactly that: They know they [claim they know] they contracted COVID at ‘this place at this time,’” Dexter said. “And once we get into the granular level, none of those has been a good case to proceed with. 

A winnable case, Dexter explained, would be one you could demonstrate negligence on the part of the business, for example, if they forced people to come to work knowing they were sick with COVID-19. 

My opinion is it would have to be gross negligence, it would have to be very, demonstrably negligent that somebody acted in a certain way when they knew they should not have acted that way.” 

Currently, Congress is debating a bill that would completely indemnify businesses from any sort of lawsuits if people got sick from COVID-19.

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