Business owners won’t rest easy if Congress shields companies from coronavirus-related lawsuits since they know that such protections only go so far.
“Probably a solid 8 to a 9,” said Chris Purcell when asked if he would worry about getting sued even if Washington enacted coronavirus liability protections.
Purcell operates Firehouse Subs in Elizabeth, North Carolina, a state with rising virus infections and more than 1,700 deaths. The state approved liability protections for businesses earlier this month, but it did little to soothe concerns over getting sued.
“It’s still full front in everybody’s mind,” Purcell said.
Purcell kept his restaurant open for takeout at the start of the pandemic but paused when he was able to reopen his dining area because of concerns that someone might sue his establishment for spreading the virus.
“We actually waited almost a week after we were allowed to [open] just to make sure that we had everything that the state was requiring and what the CDC was recommending for the sole reason of making sure that our employees and guests were safe,” he said.
Purcell’s concern is shared by a majority of business owners. Nearly 70% of business owners are very concerned or moderately concerned about liability when it comes to reopening, according to a recent poll conducted by the National Federation of Independent Business.
The U.S. Chamber of Commerce found that roughly two-thirds, 67%, of small businesses with 20-500 employees are worried about the possibility of lawsuits related to the coronavirus, according to its June poll. The percentage dips to 51% for businesses with fewer than 20 workers.
Small businesses with 500 workers or fewer employ more than 54 million workers, according to the Chamber. These jobs could be at risk if businesses come under attack by coronavirus-related lawsuits.
The concern over these cases stems from “bottom feeder lawyers” who essentially file lawsuits to extort money from businesses, said Karen Harned, executive director for NFIB’s small-business legal center.
“[The lawyers] say, ‘If you don’t pay us $10,000 by X date, we’ll sue.’ Well, [the business] is going to write the check. We’re worried that this virus is going to make those kinds of lawsuits easier to file,” Harned said.
Lawsuits would be easier to file because the virus is invisible, so a rogue lawyer could contend that it exists practically anywhere and sue accordingly, businesses say.
Harned said that payment requests range from $5,000 to $20,000 and that businesses would rather pay it than go to court, where it could wind up costing more.
“It’s costly to defend, even if you win in the end,” she said.
Michael Lotito, a lawyer with the law firm Littler Mendelson, which specializes in labor and employment litigation, has seen an increase in coronavirus-related lawsuits since the pandemic began in March, and he thinks they will continue to rise even with liability shields enacted.
“There is no question that even under a liability shield, there will continue to be lawsuits,” he said, adding that “just because [business owners] complied with the law doesn’t mean that the plaintiff thinks they complied with the law.”
However, there would likely be fewer cases if liability protections existed, according to Lotito.
The Senate seeks to include such protections in its upcoming coronavirus relief package.
Senate Majority Leader Mitch McConnell, a Republican from Kentucky, has vowed to include a liability shield that would protect companies, schools, churches, and healthcare facilities from coronavirus-related lawsuits.
McConnell has not yet put out details for his proposal, but the protections would last for at least five years, between December 2019 and December 2024, and would be extended if the Department of Health and Human Services declares that the pandemic is still an emergency in 2025.
Details on this provision could be released as soon as this week, along with the entire bill.
Lotito believes the bill will require a plaintiff to meet a high standard of proof to convict a business of spreading the virus.
“It’s not going to be just negligence. It’s probably going to be gross negligence. … It’s a much higher standard of proof, and so, cases will diminish quickly,” he said.
Still, the odds are low that liability protections at the federal level become law. House and Senate Democrats oppose including liability protections in the next relief package on the grounds that it would reward wrongdoing by allowing companies not to protect their employees and customers.
Purcell, who supports liability protections despite their shortcomings, thinks they should only apply to companies that take the necessary precautions.
“We’re not looking for a free-for-all in the wild, Wild West,” he said, adding, “It shouldn’t provide an avenue for bad actors to get liability protections.”
