Photo by Gage Skidmore Photo by Gage Skidmore

“If a business makes a risky decision during the COVID-19 pandemic, they should be held accountable.”

A well-known Tempe restaurant closed its doors a second time since the coronavirus outbreak hit Arizona, weeks after its owner – a member of the state legislature – voted to provide business owners a shield from liability during the pandemic.

Dilly’s Deli, co-owned by Rep. Jeff Weninger, R-Chandler, closed last Wednesday, after an employee tested positive for COVID-19. Weninger said the closure was done in an abundance of caution, and will remain closed for at least one week. 

Weninger’s shop is one of many restaurants that have closed due to an employee reporting to have contracted the coronavirus. As it stands, business owners can be sued for negligence if employees or customers contract the virus at their establishment. In order to win the lawsuit, claimants must also prove in court that the business was not implementing necessary sanitary guidelines.

But a bill supported by Weninger – along with a majority of Republicans in the legislature – would have allowed business owners to throw caution to the wind, by raising the threshold for what they could be held responsible for during a pandemic.

The liability shield would raise the standard for people to successfully sue businesses for coronavirus-related claims from negligence to gross negligence. Plaintiffs would also have to show by “clear and convincing evidence” that a company was grossly negligent, a higher bar of proof than the typical “preponderance of the evidence” standard for negligence claims.

“There’s a great cloud of fear that hangs over the business community about being sued, and it’s slowing down their efforts to open,” said Rep. John Kavanagh, R-Fountain Hills.

Rep. Anthony Kern, R-Glendale, argued that the law would open the door for frivolous lawsuits, and the law needed to take a more narrow approach regarding what business owners could be held responsible for. 

“It’s not about an actual lawsuit. I support lawsuits that are real,” said Kern. “I do not support trial attorneys lining their pockets.”

But Democratic lawmakers disagreed, and said making it virtually impossible for businesses to be sued would eliminate accountability for employers that play fast and loose with the health of their workers and customers.

“If a business makes a risky decision during the COVID-19 pandemic, they should be held accountable,” said Rep. Pam Powers Hanley, D-Tucson.

Rep. Athena Salman, D-Tempe, questioned the constitutionality of the bill, arguing that it would have allowed businesses to subject workers to unsafe conditions without consequence.

“This bill unconstitutionally infringes on your right to claim a civil course of action by narrowing it to gross negligence,” said Salman. “What message are we sending to the public when the first thing we do is infringe on their constitutional right to seek legal recourse in the event that they contract a deadly virus?”

While the bill passed in the House, the Arizona Senate adjourned  before bringing it to the floor for a vote. Lawmakers were uncertain if it would have been signed into law by Gov. Doug Ducey, as the bill removed criminal penalties the governor put in place for businesses who disobeyed his emergency orders.

Lawmakers are expected to be called back to work by Ducey in special sessions in coming weeks to handle virus-related issues, including the business liability proposal.