The Senate chamber was sparsely populated as the Senate began its special session deliberation on May 15, 2020. Lawmakers convened via a live-streamed video conference. An estimated 30 legislators were present in the Capitol, but spread out in meeting rooms and House and Senate chambers. (Andrew Graham/WyoFile)

On day one of the Wyoming Legislature’s special session to respond to the coronavirus pandemic, the Senate advanced a bill to grant business owners immunity from civil lawsuits brought by individuals who allege they contracted COVID-19 in the business.

The bill’s future is in doubt after the House rejected a similar measure. 

If the bill becomes law by the session’s end, however, it will do so without lawmakers ever receiving public input, and the draft legislation only would have been visible to the public for three days. 

Sen. Dave Kinskey (R-Sheridan) brought Senate File 1005, Coronavirus immunity provisions, which appeared on the Legislative Service Office website around noon Thursday, according to a spokesperson in that office. The special session began at 8 a.m. Friday. 

Lawmakers met in a Capitol that was closed to the public with the exception of a handful of journalists. There appear to be around 30 lawmakers present in the building with the rest joining online.

Sen. Tom James (R-Green River) kneels down next to Sen. Anthony Bouchard (R-Cheyenne) for a consultation in the near-empty Senate chamber. (Andrew Graham/WyoFile)

Opponents argued the Legislature was considering a major policy without allowing its constituents to weigh in. Legislative leadership already assigned the topic to the Joint Judiciary Committee, committee chairwoman Sen. Tara Nethercott (R-Cheyenne) said. The committee could conduct a “transparent” process with public comment, she said, and present a bill at the next special session. Leading lawmakers have indicated that session will come at the end of June, six weeks from now.

Kinskey and other proponents argued business owners need the protections immediately as they begin to reopen.

“In a state of emergency, all the usual rules and usual processes are suspended,” Kinskey said. “They’re out the window.”

The Senate voted 20-10 to consider the bill. The Senate passed the bill through its first of three votes early Friday afternoon by a similar margin. 

The House, however, rejected the measure, voting 40-20 not to consider it in that chamber. The Legislature is using special rules to advance identical versions of bills through both chambers on the same day. Normal rules see bills pass one chamber before being considered in the second. 

The House could vote to consider the Senate’s bill tomorrow, according to the LSO. It would take a two-thirds vote in the House to do so, however. Based on the House’s first vote, success would require 10 lawmakers to change their positions.

No opportunity for public comment

Legislative leaders said the special session would focus on four bills — with mirror versions advancing in the House and the Senate simultaneously. The bills create programs for Gov. Mark Gordon to begin distributing $1.25 billion in federal aid to healthcare facilities, small businesses, landlords and renters, and others being hit hard by the virus or its economic impact.

Kinskey’s bill, and the House version of it, were the only additional bills entered for consideration.

Legislative committees considered the four principal bills in the weeks running up to the special session. Both the Management Council and the Joint Minerals, Business & Economic Development Committee took public comment on those bills, though some transparency advocates said comment was restricted by new electronic meeting formats and lawmakers’ accelerated process. 

Kinskey’s late entry did not receive a committee hearing. The special session’s rules did not allow for public comment. Citizens were not aware of the legislation long enough to reach out to their legislators via email or text message, Senate opponents argued. 

“If we were to pass something, I couldn’t point to any opportunity where [the public] was able to reach out to us as legislators,” Sen. Affie Ellis (R-Cheyenne) said. 

But senators had been hearing from business owners who fear lawsuits because of COVID-19, several said. 

To recover from the pandemic’s economic devastation, “restoring business confidence in reopening is just as vital as any distribution of those [CARES Act] funds,” Kinskey said. 

The legislation would make property owners and lessees or property users immune from civil liability “for any action or omission that resulted in alleged exposure to or the contracting of coronavirus” on the property. Only a business owner who intentionally exposed people to the virus would be liable.

Sen. Dave Kinskey (R-Sheridan)

Many senators who own businesses said they have felt vulnerable to lawsuits regardless of the efforts taken to keep people safe. “I may be naked in terms of what I would have to do to defend against a particular lawsuit if it was filed against my company,” said Sen. Eli Bebout (R-Riverton) who owns an oilfield services company, a steakhouse and several other businesses. 

Hotel owners who conduct extensive cleaning and provide sanitizing solutions for guests could still face lawsuits in the coming weeks, Sen. Liisa Anselmi-Dalton (D-Rock Springs), a hotel owner, said. Such business owners can’t afford to wait for the Legislature to involve the public, she said. 

Another hotel and restaurant owner, Sen. Cale Case (R-Lander), had raised a number of concerns about the special session process, which he said is hurried even for the bills that have come through committee. Even as a business owner, he did not support rushing the bill through without public comment, he said.

“I’m trying to get people to come back to work, and they’re afraid to work,” he said. “I have great sympathy, but we cannot think about this in the next eight, 10 hours. It’s too big of a question.”

Several senators said they were also concerned about the hasty process, but the need to protect business owners outweighed the need for public input. “Having heard from the small businesses in my area, they’re concerned about liability and that might be a bigger, burning issue for me,” Sen. Wendy Schuler (R-Evanston) said. 

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Andrew Graham

Andrew Graham is reporting for WyoFile from Laramie. He covers state government, energy and the economy. Reach him at 443-848-8756 or at andrew@wyofile.com, follow him @AndrewGraham88

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4 Comments

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  1. I am fine with the bill as it pertains to customers of facilities like motels, bars, restaurants, etc. If you are patronizing any business and don’t understand the risks after all we have been through, it’s your own damn fault. How many hotels change comforters between guests? Clean every surface like a hospital? A restroom in a bar, gas station, or fast food joints is like the most wonderful place on earth for a virus.

    As for employees being forced to choose between working in such environments or face unemployment (without unemployment insurance or savings), I have more sympathy. Dead or penniless isn’t a threat the lawmakers face when going to work remotely. But it really isn’t a threat to the majority of working people either. Where’s the delicate balance between safety and economic necessity?

    Employers who fail to provide proper PPE, and have safe protocols & environments in place for interacting with others should be held accountable. OSHA holds companies responsible when they fail to have proper safety practices in place in regards to other hazards. Why exempt any business from taking basic safety measures during a pandemic? You should not.

    There are few good choices during a pandemic. The next one may be more lethal. Before exempting business owners from all liability, make them accountable for some basic safety measures to protect employees and customers while helping to limit the spread of the virus. If nothing else, it preps us for the COVID-20

  2. Hb1005 is a good bill. It is short, understandable and if intentional negligence occurs lawsuits are allowed. Tort sanity is difficult because of inherent conflict of interest. Lots of lawyers go into politics. The inability to estimate risk is the number one thing hurting our economy, this is a small but important course of action.

  3. Senator Gale Case, I agree with, however, did anyone notice that the funding was given at least a weeks ago. Next, it was forecast to be given before that, so where was that proactive planning? This article also provides several insights into conflicts of interest doe it not? Besides when does Government have the right to tell me as a business owner to say open? Want a great way to help, let us do our business our way. Have the so-call
    the smart business owner will not rush to open the doors, why because if this explodes, and spikes again, guess who is truly through, the people who listen to your saving liability bill. Senators seemed not to worry about liability only the chosen few

  4. I don’t see that the Legislature has much choice but to indemnify if there is a chance that business owners can be held liable for exposure to or infection by the virus. Very little is presently known about who has been exposed or how exposure occurred. There are many opinions and few reliable metrics. I think we can all agree that, after two months of constant social and economic turmoil, business owners, lawmakers and the general public know hardly any more about this virus than they did in early March. As the business community begins to come back to life I do hope the legislators carefully consider how Wyoming’s Workers Compensation program may be affected by their decision since the commercial insurance industry has taken a step away from virus-related coverage.