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AB-1035 COVID-19 emergency: small businesses: immunity from civil liability.(2019-2020)



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AB1035:v95#DOCUMENT

Amended  IN  Senate  June 25, 2020
Amended  IN  Senate  May 23, 2019
Amended  IN  Assembly  May 07, 2019
Amended  IN  Assembly  April 22, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1035


Introduced by Assembly Member Mayes Members Ramos and Mayes
(Coauthors: Assembly Members Cunningham and Gallagher)(Coauthor: Senator Wiener)

February 21, 2019


An act to amend Sections 1798.29 and 1798.82 of the Civil Code, relating to information privacy. An act to add and repeal Section 1714.28 of the Civil Code, relating to civil liability, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 1035, as amended, Ramos. Personal information: data breaches. COVID-19 emergency: small businesses: 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 with 25 or fewer employees from liability for an injury or illness to a person due to coronavirus (COVID-19) based on a claim that the person contracted COVID-19 while at that small business, or due to the actions of that small business. The bill would require the small business, for this exemption to apply, to have implemented and abided by all applicable state and local health laws, regulations, and protocols. The bill would not permit this exemption to 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 an employee of the business. The bill would apply these provisions only during the timeframe in which the state of emergency related to the COVID-19 pandemic is effective. The bill would repeal these provisions on January 1, 2023. The bill would include related legislative findings.
This bill would declare that it is to take effect immediately as an urgency statute.

(1)Existing law defines and regulates the use of personal information by businesses. Existing law requires a person or business, as defined, that owns or licenses computerized data that includes personal information to disclose, as specified, any breach of the security of the system following discovery or notification of the breach. Existing law requires the disclosure to be made in the most expedient time possible and without unreasonable delay consistent with the legitimate needs of law enforcement, as provided, and other security and investigative measures.

This bill would, instead, require a person or business, as defined, that owns or licenses computerized data that includes personal information to disclose a breach of the security of the system in the most expedient time possible and without unreasonable delay, but in no case more than 45 days, following discovery or notification of the breach, subject to the legitimate needs of law enforcement, as provided. The bill would make other conforming changes.

(2)Existing law, the Information Practices Act of 1977, requires a public agency, as defined, that owns or licenses computerized data that includes personal information to disclose a breach of the security of the system in the most expedient time possible and without unreasonable delay following discovery or notification of the breach, as specified.

This bill would, instead, require an agency that owns or licenses computerized data that includes personal information to disclose a breach of the security of the system in the most expedient time possible and without unreasonable delay, but in no case longer than 45 days, following discovery or notification of the breach. The bill would additionally require an agency that was the source of a security breach to offer, in the notice of the breach, appropriate identity theft prevention and mitigation services at no cost to potential or actual victims of the breach, as specified.

The bill would also make nonsubstantive changes.

Vote: MAJORITY2/3   Appropriation: NO   Fiscal Committee: YESNO   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.
(f) California cannot afford for small businesses to delay reopening because of the fear of frivolous lawsuits.
(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 Sec. 8550 et. seq.) 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, 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 shall not be liable for an injury or illness to a person due to coronavirus (COVID-19) based on a claim that the person contracted COVID-19 while at that small business, or due to the actions of that small business, if the small business has implemented and abided by 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 an employee of the business.
(c) Subdivision (a) shall apply only during the timeframe in which the declared state of emergency due to the COVID-19 pandemic is in effect.
(d) For purposes of this section, “small business” means a business with 25 or fewer employees.
(e) This section shall remain in effect only until January 1, 2023, and as of that date is repealed.

SEC. 3.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to protect small businesses, which continue to make significant contributions to economic development during these unprecedented times caused by the COVID-19 state of emergency, as soon as possible, it is necessary for this act to take effect immediately.