Seven states have passed laws giving businesses protection from lawsuits related to the coronavirus, and a handful of other states are considering similar legislation as establishments reopen nationwide. In the absence of action from Congress, which is waiting for further coronavirus relief spending before addressing business liability protections, individual states have stepped in to fill the void and to provide some certainty for businesses.
“States which passed business liability protection legislation, early on, they had a ‘light bulb turning on’ moment about what could happen to businesses, and this pushed them to give some protections,” said Patrick Hedren, vice president of litigation at the National Association of Manufacturers.
“As this fog of war continues to lift, hopefully more states will find a way to do so as well,” Hedren added.
Coronavirus-related business lawsuits are slowly being filed by employees and customers all over the country. The Chamber of Commerce, a business group that is pushing for more business liability protections, said in May that it was tracking over 300 different such lawsuits. Walmart, for example, has already been hit with a wrongful death suit by the family of a Chicago-area worker who died from the virus in late March.
Furthermore, the Chamber said on June 8 that “the number of workplace suits alleging failure to protect workers, or alleging actual coronavirus exposure, has steadily increased.”
North Carolina, Utah, Kansas, Iowa, Oklahoma, Alabama, and Wyoming have enacted laws that protect a broad class of businesses from lawsuits if they follow safety guidelines for limiting the spread of the coronavirus and that no laws are broken. A number of other states, such as Pennsylvania, Arizona, and Louisiana, are currently considering such legislation and are expected to make them law in the coming weeks.
States have jumped into the picture because Congress remains at a stalemate on the issue. Senate Majority Leader Mitch McConnell, a Republican from Kentucky, has said shielding business owners from coronavirus-related lawsuits is a top priority for the GOP in future spending negotiations with Democrats, saying that the economic recovery would “dramatically slow” without such protections.
House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer, on the other hand, have said Democrats won’t support the business liability protections, with Pelosi saying in May that their priority is to “protect our workers and our patients in all of this.”
Thus far, most Democrats have approached the issue from the same perspective as the American Association for Justice, which represents the trial lawyers who bring such coronavirus-related lawsuits to court. They argue that liability protections could potentially give businesses immunity to shield careless companies from bad behavior.
Multiple lawyers told the Washington Examiner that the business litigation statutes that states have passed are a limited set of protections and do not give businesses immunity from getting sued or protect them from willfully endangering people or gross misconduct.
“The business community isn’t trying to protect truly reckless or bad behavior from legal consequences. Strange times like these create nearly impossible legal and compliance quandaries, and we need to protect good faith actors who are doing their best,” Hedren said.
Although it’s still too early to tell whether the states that have given businesses litigation protection will see a lower number of coronavirus-related lawsuits, Hedren said he expects the business environment to be better in states that have passed liability legislation due to higher business certainty and confidence.
It also takes some time for potential coronavirus-related disputes with employees or customers to ripen into litigation.
”Nobody expects a flood of litigation, if there is one, for at least two to three months. It takes time to get infected, then identify it, then feel like you want to file a lawsuit,” said Buckner Wellford, chairman of law firm Baker Donelson’s advocacy department and former chairman of its healthcare litigation group.
Jeffrey MacHarg, a lawyer who specializes in commercial litigation at Fox Rothschild in North Carolina, one of the states where business litigation protection has passed, said that even if businesses do get sued, it would be very difficult for an employee or a customer to make a clear case regarding where he or she contracted the virus from.
“How do you prove you got it from this particular business or from your cousin or droplet on the street — how would you prove that?” said MacHarg.
“The protection legislation mostly helps with the psychological concerns of businesses that could get sued, but if you really ask a lawyer, they wouldn’t be too worried about it in the first place,” MacHarg added.
