Some federal lawmakers are trying to shield businesses from COVID-19-related lawsuits as they struggle to operate under evolving guidelines during the pandemic. Other lawmakers are concerned that employers would not take proper steps to safeguard workers if they received such protections.
“The COVID-19 pandemic has been a blow to many businesses across the board,” said Samuel Lillard, an attorney with Fisher Phillips in Columbus, Ohio. Some were shuttered by governors’ orders, while others remained open but struggled to keep their employees safe in the midst of the coronavirus crisis.
“During these difficulties, we have seen a rise in COVID-19 litigation in various parts of the country,” Lillard observed.
Employees have filed more than 580 COVID-19-related lawsuits against their employers since March 12, according to data compiled by law firm Littler.
Some states have enacted laws shielding business from some liability, but the legal protections differ from one jurisdiction to another. What businesses qualify for immunity? What actions or omissions are protected? How long does the immunity last?
“State laws regarding COVID-19 civil immunity have varied widely when it comes to key questions,” noted Gina Fonte, an attorney with Holland & Knight in Boston.
Federal Legislation Proposed
“A proposed federal law faces an uphill battle due to stalled negotiations over the next coronavirus relief package,” Fonte said. The federal Safe to Work Act, S. 4317, would temporarily protect businesses, nonprofits, health care providers and educational institutions that follow public health guidelines while still holding businesses accountable for willful misconduct and gross negligence.
Many Republican legislators and business groups support a nationwide liability shield. “Republicans want to protect doctors, nurses, school districts and universities from a second epidemic of frivolous lawsuits,” said Senate Majority Leader Mitch McConnell, R-Ky.
The Society for Human Resource Management (SHRM) supports the Safe to Work Act. “The legislation would provide timely, targeted and temporary liability relief to organizations as they safely reopen in support of American workers and the economy,” SHRM said. “The bill also preserves reasonable recourse for those individuals harmed by truly bad actors.”
The purpose of the bill is “to lessen the burdens on interstate commerce by discouraging insubstantial lawsuits relating to COVID-19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief,” according to the legislation.
The federal proposal would apply retroactively to pending coronavirus-related actions through at least Sept. 30, 2024.
Many Democrat lawmakers and labor-union leaders who oppose business liability protection say workers are risking their safety to receive a paycheck. “Immunity laws could send dangerous messages that the safety of these workers is not the company’s responsibility,” said Marc Perrone, president of the United Food and Commercial Workers International Union, at a Senate hearing.