While courts were partially or completely closed during the pandemic, that did not slow down litigation. In fact, by the end of March 2021, there were 2,084 lawsuits filed based on employment claims alone related to COVID-19. Lawsuits were brought across the country related to claims that arose from COVID-19 including lawsuits against the government for shutdown- connected concerns, the Centers for Disease Control and Prevention (CDC) order related to tenants, insurance-policy interpretation, personal-injury claims, employment claims, and many others. Navigating the legal minefield is at the forefront of the minds of exhibit managers as the number of live events continues to gain momentum. To help exhibitors tread this terrain carefully, EXHIBITOR sat down with Kelly Franklin Bagnall, a lawyer for Holland & Knight LLP and an EXHIBITORLIVE faculty member with a long history of experience in the hospitality and meetings industries.

EXHIBITOR Magazine: Early COVID-19-related lawsuits seem to have been directed at other industries. Do those other lawsuits offer some indications about how convention centers and event spaces, for example, might be targeted?
Kelly Bagnall: No, not really. Prudent convention and event centers need to take all reasonable precautions to protect employees and visitors. The name of the game is risk minimization. If there is an outbreak that someone specifically attempts to trace to a convention or event center, rest assured the steps taken by the facility operator will be scrutinized as to whether they were sufficient and reasonable under all circumstances. What did the facility know, when did it know it, and what did it do to mitigate the risk?

EM: Do liability protections vary state by state, and does any state stand out?
KB: Most liability protections are created by the state legislatures or governors' executive orders. Each state, even if they have the same goal, has slightly different protections based upon the writing of the statute. Many of the states do not currently offer any additional protection, some protect only health-care providers, and others extend protection to businesses.

For example, Alabama (Senate Bill No. 30), Georgia, and Louisiana liability protections provide that businesses are immune from claims for injury caused by exposure to COVID-19 unless the injury is caused by "wanton, reckless, willful, or intentional misconduct." It is also important to note that similar language is included in pending legislation in Colorado and Texas. Although California legislation is still pending (Assembly Bill 1313), if approved, it will exempt businesses from civil liability for claims alleging that a person contracted COVID-19 while at the business or due to the actions of the business if the business is substantially complying with all applicable state and local health laws, regulations, and protocols. Similarly, Illinois has pending legislation (House Bill No. 2571) providing businesses protection from civil liability if the business complies with federal regulations, state regulations, a presidential executive order, gubernatorial executive order, or other guidance applicable at the time of the alleged exposure.

Florida, on the other hand, recently enacted a law that is different than any other state. Florida Gov. Ron DeSantis signed the recently passed Senate Bill 72, which provides that for any plaintiff to file suit against a business based on a COVID-19 exposure, they must have an affidavit signed by a physician that states the physician believes the plaintiff's damages occurred as a result of the defendant's acts or omissions.

Liability protections are also still changing or being enhanced or implemented. There is pending legislation in Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, South Carolina, South Dakota, Texas, Vermont, and West Virginia.

EM: What new responsibilities might convention centers or show organizers have to protect attendees?
KB: Convention centers and show organizers should understand applicable federal and/or local guidelines and regulations. It is important to note that these guidelines and regulations are ever-changing.

EM: Do you think individual exhibitors will be responsible for safeguarding attendees or be subject to liability?
KB: Businesses are protected from liability determined by applicable laws, which of course differ by state or could differ if federal law applies. Exhibitors should also be aware and mindful of the same.

EM: Will an individual exhibitor's responsibility possibly begin before a show – that is, will it have to routinely monitor the health situation in a given city or location before sending employees off? What do you imagine such preventative measures might look like?
KB: Routinely monitoring the situation in the destination city is always advisable so that the exhibitor can remain proactive if changes are needed to any game plan or approach established for the show.

EM: Is there any kind of risk that efforts by convention centers and show producers to limit COVID-19 exposure during an expo or event might unintentionally trigger discrimination, privacy, or regulatory complaints?
KB: Under the Americans with Disabilities Act, for example, there have been cases filed regarding disabilities that prevent people from wearing a mask. Although the business may require masks, it must also provide reasonable accommodations under the ADA. In a case in Pennsylvania, for example, a store required masks but allowed alternative modifications such as a scarf, face shield, or curbside delivery, and that was enough to satisfy reasonable accommodations required under the ADA.

Similarly, the Civil Rights Act has been used as the basis for a religious exemption to masks, temperature checks, and vaccination. As reported in those cases, people are carrying a card stating that "refusal of service may place you at risk of being prosecuted to the fullest extent of the law." It is important to note that these cases have yet to be resolved by the courts. However, so long as the business or event is enforcing a mask policy consistently, it is unlikely that this claim will be successful under that act.

EM: Should show organizers consider waivers for attendees?
KB: If COVID-19 waivers are used, it is too early to tell if these waivers will be effective. None of the current legislation that I have seen specifically addresses waivers, and we could not identify published court opinions considering their efficacy as it relates to COVID-19 exposure. At this point, the enforceability and effectiveness of COVID-19 waivers, as with any liability waiver, depends on applicable law.

EM: What do you think the liability landscape will look like a year from now?
KB: Based on the pending legislation in the majority of states, we now have – and seem to continue to move in the direction of – additional liability protections. This will likely stay consistent for the next year. DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed may change on a daily basis. The information contained is for the general education and knowledge of readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, please contact counsel for timely advice. Bagnall thanks Morgan Kleoppel and Karla Pizarro for their assistance with this article.