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AB-247 COVID-19 emergency: small businesses: nonprofit organizations: immunity from civil liability.(2021-2022)

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Date Published: 03/18/2021 09:00 PM
AB247:v98#DOCUMENT

Amended  IN  Assembly  March 18, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 247

Introduced by Assembly Member Ramos

January 13, 2021

An act relating to small business. to add and repeal Section 1714.28 of the Civil Code, relating to civil liability.


LEGISLATIVE COUNSEL'S DIGEST


AB 247, as amended, Ramos. Definitions: Small Business Procurement and Contract Act. COVID-19 emergency: small businesses: nonprofit organizations: immunity from civil liability.
Existing law, the California Emergency Services Act, permits the Governor to proclaim a state of emergency during conditions of disaster or of extreme peril to the safety of persons and property, including epidemics. Existing law provides that the proclamation takes effect immediately, affords specified powers to the Governor, and terminates upon further proclamation by the Governor or by concurrent resolution of the Legislature. The Governor proclaimed a state of emergency March 4, 2020, related to the COVID-19 pandemic.
Existing law generally provides that everyone is responsible, not only for the result of their willful acts, but also for an injury occasioned to another by that person’s want of ordinary care or skill in the management of their property or person, except as specified.
This bill would exempt a small business or nonprofit organization with 100 or fewer employees from liability for an injury or illness to a consumer, as defined, due to coronavirus (COVID-19) based on a claim that the consumer contracted COVID-19 while at that small business or nonprofit organization, or due to the actions of that small business or nonprofit organization. The bill would require the small business or nonprofit organization, for this exemption to apply, to have implemented and substantially complied with all applicable state and local health laws, regulations, and protocols. Under the bill, this exemption would not apply if the injury or illness resulted from a grossly negligent act or omission, willful or wanton misconduct, or unlawful discrimination by the business or nonprofit organization or an employee of the business or nonprofit organization. The bill would apply these provisions only until the termination of the state of emergency related to the COVID-19 pandemic, regardless of when the claim is filed. The bill would repeal these provisions on January 1, 2023. The bill would include related legislative findings.

Existing law, the Small Business Procurement and Contract Act, defines “small business” to mean an independently owned and operated business of a specified size, that, among other things, has average gross receipts of $15,000,000 over the previous 3 years. Existing federal law defines “small business” to depend upon, among other things, the industry, gross receipts, and number of employees of the business.

This bill would declare the intent of the Legislature to enact legislation that would update the definition of “small business” under California law to coincide with the federal definition.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) California’s economic activity has plummeted in the wake of the coronavirus (COVID-19) pandemic.
(b) The depth and speed of the decline rivals that of the Great Depression.
(c) It is therefore imperative that we act thoughtfully and courageously to recover from this devastating toll by improving business confidence to operate.
(d) Increased confidence translates to business investment, which, in turn, will help limit the economic damage caused during the crisis.
(e) As small businesses are the backbone of our economy and the financial engine that will allow the state to recover post-COVID-19, they need liability protection to continue serving the public and providing necessary jobs. California is home to 4,000,000 small businesses, according to a 2019 United States Small Business Administration Office of Advocacy report, and each one contributes significantly to our economic strength and employment. Additionally, nonprofit organizations play a vital role in building healthy communities by providing critical services that contribute to economic stability.
(f) California cannot afford for small businesses to delay reopening, or nonprofit organizations to stop providing services, due to legal uncertainty.
(g) This is a time to encourage entrepreneurs and support small, struggling enterprises.
(h) California has recognized the need for protection from civil liability during times of crisis with the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2 of the Government Code), while also allowing harmed individuals to seek redress for actions that rise to the level of gross negligence and willful misconduct.
(i) It is the intent of the Legislature, through this act, to protect small businesses and nonprofit organizations, which continue to make significant contributions to economic development during these unprecedented times caused by the COVID-19 state of emergency.

SEC. 2.

 Section 1714.28 is added to the Civil Code, immediately following Section 1714.26, to read:

1714.28.
 (a) A small business or nonprofit organization shall not be liable for an injury or illness to a consumer due to coronavirus (COVID-19) based on a claim that the consumer contracted COVID-19 while at that small business or nonprofit organization, or due to the actions of that small business or nonprofit organization, if the small business or nonprofit organization has implemented and substantially complied with all applicable state and local health laws, regulations, and protocols.
(b) Subdivision (a) does not apply if the injury or illness resulted from a grossly negligent act or omission, willful or wanton misconduct, or unlawful discrimination by the business or nonprofit organization or an employee of the business or nonprofit organization.
(c) Subdivision (a) shall apply only until termination of the state of emergency relating to the COVID-19 pandemic pursuant to Section 8629 of the Government Code, regardless of when the claim is filed.
(d) For purposes of this section:
(1) “Consumer” means any individual who seeks or acquires, by purchase or lease, any goods, services, money, or credit for personal, family, or household purposes and includes a person who obtains services from a nonprofit organization.
(2) “Nonprofit organization” means a nonprofit organization that is exempt from taxation as an organization described in Section 501(c)(3) of the Internal Revenue Code and that has 100 or fewer employees.
(3) “Services” does not include any service provided through a nursing home, residential care facility, assisted living facility, or other facility subject to the California Community Care Facilities Act (Article 1 (commencing with Section 1500) of Chapter 3 of Division 2 of the Health and Safety Code).
(4) “Small business” means a business with 100 or fewer employees.
(e) This section shall remain in effect only until January 1, 2023, and as of that date is repealed.

SECTION 1.

It is the intent of the Legislature to enact legislation that would update the definition of “small business” in subdivision (d) of Section 14837 of the Government Code to coincide with the federal definition found at Section 632 of Title 15 of the United States Code.