COVID-19 Phase 2

As Arkansas began Phase Two of its gradual reopening of businesses and social activities, the governor issued three executive orders related to the coronavirus outbreak.

The first provides immunity from civil liability for businesses and employees, to protect them from frivolous lawsuits alleging they were responsible for someone’s contracting COVID-19, the potentially severe illness caused by the coronavirus.

A second executive order declares that health care staff are considered emergency workers when they’re treating patients suffering from COVID-19, and as such they have immunity from civil lawsuits.

The third order puts COVID-19 in the category of occupational diseases, which means that employees who get sick from the virus at work can claim workers’ compensation benefits.

Support for the three executive orders was not unanimous across the political spectrum, but each side got something it had wanted. The business community applauded the order granting immunity from civil liability. On the other hand some attorneys said that nobody, not even a governor, can abolish an individual’s constitutional right to seek redress of grievances in court.

Apart from any legal questions that remain unanswered, officials hope the executive orders will be a strong incentive for businesses to comply with health guidelines.

In order to receive workers’ comp insurance benefits, sick employees must show that they contracted the disease while on the job. The executive order refers to that as a “causal connection between employment and the disease.”

Legislative leaders had been negotiating whether or not to ask for a special session. The issuing of the executive orders eliminated the immediate necessity for a special session.

Several legislators said that the orders struck the right balance between competing interests, while avoiding the risk of a “runaway” special session.

Other legislators preferred holding a special session because the pace of reopening Arkansas for business as usual requires making difficult choices and allowing spirited public debate. A legislative session is the proper venue for that kind of debate and compromise.

The president of the Senate said that while protecting businesses, the executive orders would not allow a free pass to bad actors. Small businesses like barber shops, hair salons, nail salons and fitness centers could be permanently shut down. The expense of defending themselves from a frivolous lawsuit, “could be the final nail in their coffin,” he said.

In order to claim the presumption that it has not acted recklessly or willful, businesses must substantially comply with public health directives.

The chairman of the Economic Recovery Task Force has said that the group advocated some form of liability protection to reduce uncertainty for businesses trying to reopen.

During Phase Two, restaurants may seat up to 66 percent of their capacity. Gyms and fitness centers must still screen participants to prevent people with symptoms from entering.

On July 1, nursing homes and long-term care facilities may allow up to two visitors to a single resident. Visitors must be screened, and must wear masks.

The decision to reopen nursing homes to visitors was based on widespread testing of residents and staff in every facility in Arkansas. So far, more than 13,000 residents and staff have been tested and less than 1 percent have tested positive.