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COVID liability protections for businesses pass SC Senate, face uncertain future in House

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State Sen. Dick Harpootlian, D-Columbia, speaks on the floor in 2019. Harpootlian opposed a bill to provide liability protections for businesses. File/Jamie Lovegrove/Staff

COLUMBIA — After almost a year of trying, business groups successfully shepherded a bill through the South Carolina Senate on Feb. 25 that would help shield them from COVID-19 lawsuits by customers and workers if they follow safety guidelines.

But it faces an uncertain future in the House, where top lawmakers have questioned the need for it.

The measure would promise "a safe harbor from liability" for employers who follow guidance published by state health agencies. Passage would add South Carolina to at least 32 other states, including eight in the southeast, that have passed similar laws since the beginning of the coronavirus outbreak last year.

The Senate voted 40-3 in favor of the bill, with three Democratic state senators voting against: Dick Harpootlian of Columbia, Marlon Kimpson of Charleston and Mia McLeod of Columbia. 

During a few hours of debate, Kimpson and McLeod spoke up against the bill. But Harpootlian said he thought the proposal was so useless that it was not even worth fighting.

The argument from Harpootlian and other trial lawyers is that it would be too difficult for anyone to prove that they contracted coronavirus at a specific business. If anyone does have a strong case, Harpootlian added, competent lawyers will easily be able to work their way around the bill.

"This was a feel-good bill and we've spent days dealing with something that has no practical effect, and that offends me," Harpootlian said. "The Chamber wants to say they did something for their constituency, but it's not going to actually help their constituency. They're not going to get sued anyway."

But Swati Patel, interim CEO of the pro-business S.C. Chamber of Commerce, said the bill will go a long way to ensuring businesses can remain open during the pandemic.

"As many businesses have struggled to stay open, this bill includes a degree of certainty that if an employer follows public health guidance to keep customers and employees safe, they will not be the victim of frivolous lawsuits," Patel said.

At least 36 coronavirus-related lawsuits have been filed in South Carolina since last March, according to a national tracker compiled by the law firm Hunton Andrews Kurth. But it's not clear how many of those lawsuits would be addressed by the liability bill.

Business groups are now turning their attention to the House, where they may receive a skeptical audience.

Asked if the bill would receive a House subcommittee hearing, Judiciary Chairman Chris Murphy was noncommittal.

"We'll take a look at it," said Murphy, R-North Charleston, saying they would need to evaluate the final product after it came out of the Senate.

The House is likely the final hurdle the bill will need to clear. During his annual State of the State address in January, Gov. Henry McMaster called on lawmakers to pass a COVID liability bill, suggesting he would sign it if it makes it to his desk.

"Our businesses, our healthcare providers, and educational institutions should not be put at risk or competitive disadvantage through no fault of their own, particularly after following safety protocols," McMaster said. "We should be careful not to let litigation kill what the pandemic could not."

Business groups first sought to pass a COVID liability bill last year when the outbreak forced many companies to temporarily close but lawmakers failed to push it through before running out of time.

Now, many businesses in South Carolina have already reopened, and health officials are hopeful that most South Carolinians will be able to get vaccinated by the summer or fall.

Follow Jamie Lovegrove on Twitter @jslovegrove.

Jamie Lovegrove is a political reporter covering the South Carolina Statehouse, congressional delegation and campaigns. He previously covered Texas politics in Washington for The Dallas Morning News and in Austin for the Texas Tribune.

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