SC Chamber and Partners Roll-Out Liability Recommendations, Governor McMaster Addresses Chamber Partnership Committee, Federal Actions Update

Email to COVID-19 Mailing List: May 14th

Today’s COVID-19 business information compiled by your SC Chamber Team includes: SC Chamber and Partners Roll-Out Liability Recommendations at accelerateSC Response Subcommittee, Governor McMaster Addresses Chamber Partnership Committee, Federal Actions Update

ICYMI: A webinar from Chamber Investor Spectrum Reach- "Looking Beyond: What's Next to Help Local Businesses Succeed?" which will help to "arm yourself with the tactics needed to think beyond the current climate and thrive in the coming months". Register here.

1. SC Chamber and Partners Roll-Out Liability Recommendations at accelerateSC Response Subcommittee

Yesterday in the accelerateSC Response Subcommittee meeting, several businesses and healthcare industry groups announced recommendations for the state to consider to protect businesses from liability as more businesses start reopening. These recommendations were submitted by the SC Chamber, the SC Manufacturers Alliance, the SC Hospital Association, the SC Medical Association, and the SC Retail Association.

Our organizations are jointly supporting targeted and limited liability safeguards to include:

  • Safe Harbor: Temporary and limited immunity from liability is needed to protect a business or industry from a person alleging exposure to COVID-19 if it followed public health guidance at the time. The standard of care should be a reasonable attempt to comply with public health guidance at the time.
    • The safe harbor should begin at the start of the pandemic and should be valid only to the end of the pandemic or the end of 2022, whichever is earlier.
  • No Protection for Bad Actors: The protection should not apply if the conduct is intentional or reckless, and the employer did not reasonably attempt to follow public health guidance.
  • Products Liability: A limited and temporary safe harbor from liability for manufacturers making PPE is needed, except for an injury that results from reckless or intentional conduct.
  • Workers’ Compensation Claims: Need to clarify that on-the-job claims of exposure to COVID-19 by employees are exclusive to the workers’ compensation system and should not go to civil court.

They also emphasized that these protections are needed sooner rather than later. The filing of lawsuits is happening around the country, and recent stats* show:

  • About 430 COVID-19 related lawsuits filed against businesses and industries around the country and this number is growing every week
  • 18 Governors have issued executive orders to provide liability protections
  • 9 States have passed a liability protection bill
  • 6 States have bills pending

*Source: US Chamber Institute for Legal Reform 

The Chamber and over 50 state and local partners previously sent a letter to the members of the South Carolina Federal Delegation, urging their support for legislation that will protect businesses as the state begins to reopen. The Senate Judiciary Committee, Chaired by US Senator for South Carolina Lindsey Graham, met on Tuesday and took testimony on this issue, as you will read in detail below.

2. Governor McMaster Addresses the Chamber Partnership Committee

Governor McMaster joined a Chamber Partnership Committee (CPC) meeting this morning to address the local and regional chamber leaders on the call. About once a quarter, the SC Chamber convenes this group so the members can collaborate and share best practices.

The Governor shared his take on how the state was faring amid COVID-19 and his insights moving forward. Key items discussed include:

  • SC being hailed nationally by Dr. Anthony Fauci as a model for the country in COVID-19 response.
  • The Governor will continue with his measured, deliberative approach to responding to the virus – he hopes to lift many of the remaining restrictions very soon.
  • Many of the businesses that are closed are closed due to their own decision (supply chain, safety concerns, etc.) and not forced to close by the state.
  • SC will be receiving $1.9 billion from the federal government for COVID-19-related costs – the Governor is working with the legislature to determine where the funds are most needed and will be most effective.
  • The key to opening back up and getting public confidence back will be a vigorous testing and tracing protocol.
  • accelerateSC will be guiding specific business types (find those released already here) as well as guidance for resuming fairs and festivals – the date on which those can start is still TBD. Still, the Governor is hoping we will be closer to normal in July than we are now.
  • They did not determine the resumption of in-person classes for students at this time, but Superintendent Molly Spearman is working with a task force to make some of those decisions.
  • The Governor expects both the federal and state governments to work on liability protections for businesses – Chamber leaders should remain in touch with their representatives to urge them to get a bill passed this summer.

In addition to hearing from the Governor, the group also received an overview of the Chamber’s Relief and Recovery Agenda for SC Businesses and discussed recent legislative updates.  

3. Federal Actions Update: Liability Protections, Paycheck Protection

US Senate Judiciary Committee Holds First Meeting to Examine Liability Issues During the COVID-19 Pandemic:

  • On Tuesday this week, the US Senate Judiciary Committee, chaired by US Senator for South Carolina Lindsey Graham, met to discuss liability issues and heard testimony from business owners around the country as well as from SC’s own Helen Hill, CEO of Explore Charleston.
    • Hill testified, “…we are seeking liability protections for businesses that are limited, temporary and put in place immediately. Protections should be limited to American businesses that are reopening in accordance with health and safety guidance and acting in good faith. These measures should be temporary to protect responsible businesses from frivolous lawsuits during this pandemic and through a period of economic recovery. And importantly, these measures must be put in place immediately.”
  • While the committee did not reach an agreement on any legislation in this first meeting, we expect these conversations to continue. We will continue to encourage the federal government to act quickly.
  • As mentioned in the section above, the SC Chamber and 56 other associations and local chambers sent a letter to the SC Federal Delegation last week to ask for rational, targeted, and limited liability protections.

Paycheck Protection Program (PPP) Update:

Last month, the Small Business Administration (SBA) announced that it would be reviewing all PPP loans over $2 million to ensure PPP loans are limited to eligible borrowers (i.e., those who need it). This review would follow the lender’s submission of the borrower’s loan forgiveness application. That announcement stated that guidance was forthcoming.  

Yesterday, the SBA issued that guidance via the updated PPP FAQ document. Question 46 clarifies that under the new guidance:

  • Businesses receiving PPP loans of less than $2 million will be eligible for a safe harbor that deems they are making the loan request in good faith; as such, loans below $2 million will not be subject to further review. 
  • Borrowers with loans greater than $2 million “may still have an adequate basis” for applying for a PPP loan based on their circumstances, but they will be subject to SBA review to determine the necessity of the loan request. If the review concludes that the applicant should not have received PPP funds, the SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness.