After Nebraska Gov. Pete Ricketts railed against new federal masking guidance this week, two lawmakers pointed out that rejecting the guidance could void protections against lawsuits included in a new state law.
The recently enacted law is aimed at providing businesses and other entities with some protection from COVID-19 lawsuits as long as there was “substantial compliance” with federal public health guidance, including from the federal Centers for Disease Control and Prevention.
The Nebraska Legislature approved the measure, LB 139, on a 41-1 vote, and Ricketts signed it in late May.
State Sen. Adam Morfeld of Lincoln, a Democrat in the officially nonpartisan Legislature, took aim at Ricketts for decrying recent CDC guidance, even though the governor also supported and signed the new law.
“The governor should be more responsible in his statements and not make statements that could expose businesses to financial liability and ruin,” Morfeld said.
Earlier this week, the CDC recommended that even vaccinated people resume wearing masks in public indoor spaces in areas with substantial or high COVID-19 transmission rates.
That includes all teachers, staff, students and visitors to schools, regardless of vaccination status. Some local experts had already begun issuing similar recommendations, with case rates rising and the delta variant of the virus taking hold.
Ricketts rebuked the CDC on Tuesday, saying the guidance “flies in the face of the public health goals that should guide the agency’s decision-making” and that it would add to public distrust of the CDC.
“The State of Nebraska will not be adopting their mask guidance,” Ricketts said in the statement. He also reiterated his expectation that schools and universities will reopen this fall without mask or vaccine requirements.
Asked whether the governor was concerned that by encouraging business owners, schools and others to not follow CDC guidance that he could expose them to lawsuits, a spokesperson said Friday that Ricketts’ statement pertained to the State of Nebraska.
Earlier this week, Taylor Gage, the governor’s spokesman, did not respond to questions regarding whether there’s something the governor can do to prevent schools, universities or local governments from having mask requirements and whether there would be consequences if they put requirements in place.
Morfeld said he’s concerned that the governor is advising people not to follow CDC guidelines when those guidelines could protect them from potential lawsuits. As an attorney, he said, lawsuits like those covered by the law would be “really tough” cases to prove. Still, he said Ricketts’ statement “flies in the face of the same bill he promoted.”
State Sen. Tom Briese of Albion, a Republican who introduced the bill, did not take aim at the governor in his comments but said any entity should consider the new law when deciding what COVID mitigation measures to adopt.
The law was passed to provide businesses, schools, health care providers, government entities and others a measure of protection from unwarranted COVID exposure lawsuits, he said. In providing that shield, it also created an incentive to follow public health guidance, Briese said.
Based on discussion and testimony before the bill’s passage, Briese said it appears that lawsuits related to COVID exposure are not common, but he expects they could arise later. Briese added that he’s “also concerned about some of the CDC guidance” on COVID.
But he encouraged any entity that’s considering not complying with CDC guidance to first weigh the potential benefit provided by the bill.