Liability protections instituted nationwide deemed unnecessary

Covid-19 lawsuits haven't materialized, but businesses now can operate through disasters in 30 states

CovidliabilityprotectionIn a legislative flurry, 30 states instituted liability protections in late 2020 and early 2021 designed to protect businesses from Covid-19 lawsuits, out of fear that companies would be sued for exposing workers, clients or vendors to the swiftly spreading, deadly disease.

Those lawsuits haven’t materialized.

Proponents of the new laws say that’s because the statutes have scared off potential litigation. But critics say the actions have created a solution in search of a problem, because most employees who sue do so under existing workplace safety regulations, such as those enforced by the federal Occupational Safety and Health Administration, or under union rules.

And because of the nature of Covid-19, including how fast and easily it spreads, pinpointing and proving the exact location where someone got the virus is difficult. Neither OSHA nor most states issued Covid-19 rules for workplaces in the past year, though a few liberal-leaning states did.

The dearth of litigation could stem from all those things.

“The liability shield laws themselves have discouraged plaintiffs’ lawyers from trying to bring suits,” said Torsten Kracht, an attorney with national law firm Hunton Andrews Kurth.

His firm mostly represents businesses that have been sued, but it has sometimes represented plaintiffs as well, he said.

“In cases where you have employees who got sick on the job, their recourse is really through workers’ comp claims,” he added. “I think that may be another reason.”

Hunton Andrews Kurth’s Covid-19 “complaint tracker” shows about 200 civil suits have been filed nationwide by workers in 2021 and just 52 have been filed by nonemployees who allege they got Covid-19 in a place of business. The tracker showed 1,700 coronavirus-related civil rights cases and 771 Covid-19 consumer cases over the same time period.

Kracht said isolating where someone contracted Covid-19 is easy only if those people were in a controlled environment such as a cruise ship at sea for more than 14 days.

“But if I’m a person out in the world—shopping, eating, etc.—it’s pretty hard to prove where I got it.”

He knew of no cases that had made it all the way through the legal process to a conclusion either way.

Many of the state laws were based on model legislation distributed by the American Legislative Exchange Council, a conservative group known as ALEC.

The ALEC model bill—titled the “Liability Protection for Employers in a Declared Disaster or Public Emergency Act”—would allow proprietors or businesses to operate during a declared disaster or public emergency without the threat of civil litigation if they complied with or made a “good faith effort” to comply with applicable federal, state or local regulations, orders or laws, said ALEC spokesperson Alexis Jarrett, in an email.

Jarrett said suits for coronavirus-related issues are likely to crop up in the coming months and years, which is why the state legislation, and the ALEC model most of them are based on, are necessary.

The new liability protection laws vary, but most of them seek to protect all or specific kinds of businesses from lawsuits that attempt to establish culpability. Exceptions are usually made for negligence, willful misconduct or a provable failure to follow public health orders.

Many governors, especially Republicans in the 23 states where the GOP holds both houses of the legislature and the governorship, championed the liability limitations laws.

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