To avoid COVID 19 lawsuits, businesses must be protected. Proving exactly where a person might have become infected with the coronavirus would be near impossible, but that doesn’t mean some lawyers will not try to cash in on quick settlements.
Do businesses need to be protected from COVID-19 lawsuits? Senate Majority Leader Mitch McConnell (R-KY) thinks so and is pushing for liability protections to be included in the next Senate bill. McConnell claims that if businesses are not protected from COVID-19 related lawsuits, our economical recovery will be “dramatically slow”. McConnell has referred to these business liability protections as a “red line” for the Republican Party.
During a May 12th hearing, the Senate Judiciary Committee discussed whether the next phase of coronavirus (COVID-19) spending legislation should include limits on employees and consumers’ ability to sue their employers or businesses over alleged coronavirus-related injuries. Witnesses from across the spectrum of our economy and public service sector testified as to whether businesses would be exposed to possible bankruptcy without such protections. Worker advocacy groups, on the other hand, countered that such protections could substantially weaken workers’ rights in the workplace.
The greater question is whether the federal government should be engaged in these discussions at this time. It’s premature to be discussing liability protections when nobody knows what is going to be required within the many unique work environments across the United States, let alone all the different types of spaces where consumers gather within any business. Until new rules are put in place, and sufficient time is allowed for proper enactment, how can an employer be held liable for a COVID-19 event, aside from just blatant and obvious negligence on the part of an employer?
Until the Centers for Disease Control and Prevention (CDC) or the Occupational Safety and Health Administration (OSHA) generate directives for the workplace on how to prevent the spread of COVID-19, businesses must rely on state and local rules. Why is that not sufficient, if not better than anything Washington DC could produce on the subject? If Capitol Hill would pause for a moment and step away from the COVID-19 anxiousness, they might realize that laws protecting businesses from COVID-19 related lawsuits probably would be more effective if they were state laws instead of federal laws.
The preeminent global law firm, Ropes & Gray LLP published an article on April 29, 2020 titled COVID-19 Business Liability Considerations in Reopening the Economy. They had this to say:
With respect to employees, workplace-acquired COVID-19 infections could result in workers’ compensation or other liability claims. Actions taken by employers to limit the spread of COVID-19 in the workplace could also trigger claims or regulatory actions based on theories such as discrimination or other unlawful employment practices, invasion of privacy, and failure to comply with workplace safety requirements. Similarly, patrons could pursue a variety of common law tort and statutory claims against businesses should they contract COVID-19 and assert that it was acquired within a specific commercial establishment. The financial harm to businesses could be especially severe because many general liability insurance policies contain exclusions for liabilities related to infectious diseases. Although all successful actions would require some proof that the alleged injury or illness was caused by a violation of a duty of care (or, in the case of a workers’ compensation claim, that the injury or illness was work-related), even weak legal claims may have “strike” value, be persuasive to juries, and could be expensive to defend.
Note that in 2009, during the H1N1 (swine flu) pandemic, lawyers were discussing whether a person may have a claim if he or she caught that particular flu. In fact, such liabilities have always existed. If a person knows he or she has the flu and goes about the public coughing and sneezing without making any effort to cover his or her mouth and nose, this person could face civil penalties for negligent transmission of a disease. If this individual purposely coughed or sneezed on another person, he or she could be criminally charged with battery, intentional infliction of emotional stress, etc. The fact is the 2009 H1N1 (swine flu) was a global pandemic. Yet no laws, to my knowledge, were passed to protect businesses from an avalanche of lawsuits claiming that due to a particular business’s negligence, an individual contracted the swine flu. After all, H1N1 was transmitted person-to-person the same way as COVID-19 is spreading through the United States population.
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Critics will point to the relatively low fatality rate associated with N1H1 in the United States when compared to COVID-19. This they will claim, is the reason why businesses were not forced to close, and Americans were not stripped of their rights to assemble and travel, while being forced to wear face masks that may be causing more harm than good, all the while under stay-at-home or shelter-in-place orders. These same critics turn away from the hundreds of reports that indicate that COVID-19 is being put on so many death certificates without cause, to the degree that there is absolutely know way possible to truly know the cause of death for tens of thousands of Americans so far in 2020. Now that’s a criminal offense!
What we are left with is this peculiar effort to place liability on already burdened businesses for a virus they did not cause and cannot cure. How is a 60-seat restaurant that is near bankruptcy because they have had little to no carry-out business the last 8 weeks; how is this business supposed to recover when it’s dine-in capacity is now cut in half or even two-thirds? This business may actually lose more money being open at half-capacity than if it just remained closed. Half-capacity will not pay the labor, food costs, additional utility consumption, etc. If the burden of ensuring that customers maintain the random 6 feet distance apart (social distancing), this will require the restaurant owner to hire and designate certain employees to function as dining room monitors. Who pays for this labor? The restaurant owner that is only allowed to have half of her normal capacity in her dining room at any given time.
And then there is the line of people waiting to get in the restaurant because it is operating at half-capacity. Who is responsible if particular patrons in the line are not wearing masks or keeping 6 feet away from the other patrons in the waiting line? It is absurd to think that this is the restaurant owner’s responsibility and liability.
When it comes to employees, the business owner does have the right to require that employees wear certain safety equipment. In manufacturing settings, protective eye wear, steel-toe boots, gloves, face shields, respirators, and other protective clothing or equipment may all be mandatory. OSHA has many requirements to keep employees safe and a business owner has a responsibility to ensure that safety information and equipment is readily available and used by employees.
During this COVID-19 pandemic, business owners may require that employees wear face masks for there protection as well as to put the patrons at ease. The perception of safety is just as good as actual safety. Actually, if a customer comes down with COVID-19 and requires hospitalization, he or she is going to wonder where they contracted the virus. She may recount all the businesses she was in the last 14 days. If in one of those businesses she remembers that none of the employees were wearing masks or gloves, guess who she is going to blame. When she is on the phone with her injury lawyer after her near-death experience, she’ll be sure to lead the lawyer to Ozzie’s Burger Barn at the corner of 5th & Buckeye. Meanwhile, her 12-year-old son Timmy had the virus, which he caught at the playground when playing football with 21 other juvenile delinquents, was asymptomatic, and gave it to his mother.
After much anxiety, the owner of Ozzie’s, at the advice of his lawyer, agrees to settle for $20 thousand because that is actually cheaper than trying to defend the case at trial. Word gets out about the successful shakedown of Ozzie’s Burger Barn. Plaintiffs begin to crawl out of the woodwork. It is a sad commentary indeed. This sort of nonsense is happening everyday in the United States of America. It’s an enormous strain on businesses and hurts both business owners as well as employees.
Whether lawmakers take steps to limit these types of lawsuits, or not, it would be best if when patronizing a business, people would assume full responsibility for their own safety. If a restaurant is too crowded for your comfort, don’t go in it. If a person invades your 6-foot space, move away from that person. Wear a mask if it makes you feel better. Wear gloves too if you think it will help. Do your own research and hold yourself accountable for your own safety and health. Good luck and stay honest.
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