Alabama Reopens Additional Businesses and Provides Immunity to Covered Entities for Certain COVID-19 Claims

On May 8, 2020, Governor Kay Ivey issued an amended Safer at Home order, lifting previous restrictions and providing additional guidance to Alabama businesses. The same day, Governor Ivey issued a separate executive order providing liability protection or immunity to businesses and health care providers.

Amended Safer at Home Order

Governor Ivey amended the Safer at Home order that initially reopened limited sectors of Alabama non-essential businesses on April 30, 2020. The May 8 order lifts even more restrictions and reopens additional businesses that remained closed under the previous order. The latest order is effective Monday, May 11, 2020, and remains in effect until May 22, 2020.

The amended Safer at Home order includes the following changes:

• Non-work gatherings. The 10-person limit for non-work gatherings is lifted, but people are still required to maintain 6 feet of distance between persons not from the same household. The order also “strongly encouraged” organizers of religious gatherings to implement the Alabama Department of Public Health’s (ADPH) “Guidelines for Places of Worship.”
• Restaurants, bars, and breweries. Restaurants, bars, and breweries can open with on-premises consumption but must limit table seating to no more than eight persons per table and six feet of distance between tables, subject to additional sanitation rules and guidelines. Each employee must wear a facial covering when interacting with patrons. The order prohibits self-service at drink stations, buffets, and salad bars. The order also “strongly encouraged” these establishments to implement the ADPH’s “Guidelines for Restaurants and Bars.”
• Athletic facilities. Athletics facilities may open subject to social distancing and sanitation rules and guidelines, including requiring employees to wear facial coverings. Athletic facilities include fitness centers, commercial gyms, spas, yoga, barre, and spin facilities. These facilities must limit occupancy to “50 percent of the normal occupancy” and “prohibit patrons and guests from accessing showers, hot tubs, steam rooms, lockers, saunas and other recreational water or spa facilities.” The order also “strongly encouraged” operators of athletic facilities to implement the ADPH’s “Guidelines for Athletic Facilities.”
• Close-contact service providers. Close-contact service providers may open subject to social distancing and sanitation rules and guidelines. These providers include barber shops, hair salons, nail salons, tattoo services, waxing salons, threading salons and spas, body art facilities, and massage therapy establishments. The order also “strongly encouraged” close-contact service providers to implement the ADPH’s “Guidelines for Close Contact Personal Service Businesses.”
• Beaches. Alabama beaches will be open with no limit on gatherings, but people must maintain a six-foot distance between themselves and individuals from a different household.

The May 8 order identified “higher risk businesses activities” including entertainment venues and certain athletic activities that will remain closed at this time. Entertainment venues include the following: nightclubs, bowling alleys, arcades, concert venues, theaters, auditoriums, performing arts centers, tourist attractions (including museums and planetariums), racetracks, indoor children’s play areas, adult entertainment venues, casinos, bingo halls, and venues operated by social clubs.

The athletic activities that remain prohibited include: (1) “[s]ports that involve interaction with another person of closer than [six] feet”; (2) “[a]ctivities that require use of shared sporting apparatus and equipment”; and (3) “[a]ctivities on commercial or public playground equipment.”

New Guidelines for All Alabama Businesses

Under the amended order, all Alabama employers are “strongly encouraged” to implement the ADPH’s “Guidelines for Safeguarding All Businesses.” The guidelines offer the following recommendations for employers:

• Promote telework. Employers are encouraged to “[a]llow employees to work from home as much as possible.”
• Screen employees. The guidelines provide that employers should screen all employees reporting to work by asking questions regarding COVID-19 symptoms, including:
  • “Have you been in close contact with a confirmed case of COVID-19?”
  • “Are you experiencing a cough, shortness of breath or sore throat?”
  • “Have you had a fever in the last 48 hours?”
  • “Have you experienced new loss of taste or smell?”
  • “Have you experienced vomiting or diarrhea in the last 24 hours?”

  In addition, the guidelines recommend that employees should be screened for fever on a daily basis. A “minimum practice” would be for employees to take their own temperatures before arriving at work, while a “best practice” would be for employers to take employees’ temperatures onsite using a no-touch thermometer upon arrival at work. “In either case, a normal temperature does not exceed 100.4 degrees Fahrenheit.”

• Post signage on health policies. The guidelines state that employers should “post extensive signage on health policies” in the workplace including the U.S. Centers for Disease Control and Prevention’s (CDC) “Stop the Spread of Germs” guidance and the “Symptoms of Coronavirus (COVID-19)” guidance.
• Improve ventilation techniques. The guidelines encourage employers to consider “improving the engineering controls using the building ventilation system,” which can include increasing ventilation rates, increasing the percentage of outdoor air that circulates into the system, and not recirculating air.

The guidelines state that employees should stay home from work when they have been exposed to COVID-19, when they have been diagnosed with a confirmed case of COVID-19, or are not feeling well. Employees are encouraged to increase hygiene practices, wear cloth face coverings, and abide by guidelines established by their employers, “which may include the use of gloves, social distancing practices in the workplace and increased sanitation.”

Executive Order Establishing Business Immunity for COVID-19 Claims

Governor Ivey also issued on May 8, 2020, a separate executive order under the authority of the Alabama Emergency Management Act providing a safe harbor to businesses, health care providers, and other covered entities “that operate reasonably consistent with applicable public health guidance.”

The order defines “business, health care provider, or other covered entity” as “an individual, partnership, association, corporation, health care provider, other business entity or organization, or any agency or instrumentality of the State of Alabama, including any university or public institution of higher education in the State of Alabama, whether any such individual or entity is for profit or not for profit, including its directors, officers, trustees, managers, members, employees, volunteers, and agents.”

The order provides covered entities protection against claims alleging on-premises exposure to COVID-19. However, immunity does not apply to lawsuits where a plaintiff shows “clear and convincing evidence” of “wanton, reckless, willful, or intentional misconduct” by the business.

The order includes an additional business protection that prohibits “damages from mental anguish or emotional distress or for punitive damages” in circumstances that do not involve “serious physical injury.” This damages limitation, as well as the liability protection, apply retroactively to March 13, 2020.

Ogletree Deakins will continue to post updates and guidance on the latest orders from Governor Ivey as they become available. In addition, the firm will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in its Coronavirus (COVID-19) Resource Center. Critical information for employers is also available via the firm’s webinar programs.