On August 11, 2020, Nevada Governor Steve Sisolak signed legislation that shields non-healthcare businesses from lawsuits that arise out of COVID-19 infections when a business follows state and local health standards. Though the legislation is aimed at safely re-opening the Las Vegas Resort Corridor, the protections extend to businesses beyond the hospitality industry. For the shield to apply to a business, the business must follow strict health standards set by local, state, and federal authorities.
- Specific Health Standards Contained in the Legislation
The standards can be broken down into two categories that include sanitation and contact elimination for public accommodation facilities. The standards for sanitation require employers to:
- Provide employees with a mask;
- Clean of all surfaces in which employees or guests come into contact;
- Mandate employees and guests to stay six (6) feet apart;
- Separate workstations with physical barriers where practicable; and
- Encourage frequent hand cleaning by providing access to a sink with soap and water or provide hand sanitizer.
The standards for contact elimination within public accommodation facilities require businesses to create a COVID-19 response plan. This plan must:
- Designate a person or persons responsible for overseeing an onsite enforcement plan;
- Require all employees returning to work for the first time after March 13, 2020, to undergo COVID-19 testing;
- Designate an area in which an employee will receive contact-free temperature measurement and review screening questions;
- Notify each employee who had close contact with a guest or employee who was diagnosed with COVID-19;
- Provide three days of paid time-off for employees who undergo COVID-19 testing or more time if there are documented delays in test availability;
- Require employees experiencing symptoms of COVID-19 to notify his or her employer and undergo testing;
- Provide free COVID-19 testing;
- Request that any guest that has been diagnosed with COVID-19 to leave the facility as soon as practicable; and
- Keep the names of those diagnosed with COVID-19 confidential.
- Gross Negligence
The legislation does not provide COVID-19 related immunity to any business that does not adhere to health guidelines or from gross negligence. In Nevada, gross negligence is defined as an act or omission done with an aggravated character or with willful, wanton misconduct. Therefore, to prevent liability from COVID-19 exposure, businesses must comply with state and local health standards.
- Earlier Executive Orders
On June 26, 2020, Governor Steve Sisolak gave the Nevada Occupational Safety and Health Administration (“NV OSHA”) the authority to enforce COVID-19 mitigation directives “to keep our businesses open and our economy moving.” On July 1, 2020, the Division of Industrial Relations (“DIR”) released a statement that it will make unannounced visits to businesses to observe compliance with face coverings, social distancing protocols, and sanitation requirements.
The DIR will issue notices to businesses that fail to comply with the Governor’s COVID-19 orders and conduct follow-up visits to those businesses. If an inspector finds continuing noncompliance, the inspector will issue a citation, open an investigation, and schedule a conference. Under the authority provided in NRS 618.545(1), the DIR Administrator may close a business until the business complies or the State of Emergency ends.
The DIR will take complaints from the public. Two “call-in lines” are available to the public to report noncompliance and they will be “promoted so Nevadans are easily able to help ensure enforcement in their communities.” Any business that receives a complaint will be issued a letter and the business is allowed to respond to NV OSHA. If the letter is deemed insufficient, NV OSHA may open an investigation. If a business receives numerous complaints, NV OSHA can choose to open an investigation and issue citations. The NV OSHA may also send certain complaints to business licensing agencies instead of going through an inquiry process.
Additionally, the NV OSHA will collect data on business compliance and use the data to enforce actions against industry sectors that have the greatest incidences of noncompliance. Those business sectors with the highest non-compliance will receive the most attention from the DIR.