Immunity for businesses over COVID-19 lawsuits?

Everyone is anxiously awaiting news about immunity when it comes to the novel coronavirus pandemic. Whether it’s herd immunity through exposure, individual immunity among those with antibodies present in their systems or a reliable vaccine, immunity is on everyone’s minds. But many business owners and employers are worried about another type of immunity. If they open back up, welcoming back both their workers and their customers, will they be liable to crippling lawsuits when (not if) some of those people wind up contracting the disease? If so, the price of reopening may wind up taking them out of the market permanently.

That’s the issue being taken up in state legislatures around the country right now. And many businesses and other entities are already asking employees and customers to sign waivers freeing them of such liability in the event of someone contracting COVID-19 on their property. So is this a sensible and responsible approach or are we cutting off the rights of those who might fall ill (or worse) while going about their normal routines? (Associated Press)

As businesses reopen across the U.S. after coronavirus shutdowns, many are requiring customers and workers to sign forms saying they won’t sue if they catch COVID-19.

Businesses fear they could be the target of litigation even if they adhere to safety precautions from the Centers for Disease Control and Prevention and state health officials. But workers’ rights groups say the forms force employees to sign away their rights should they get sick.

The liability waivers, similar to what President Donald Trump’s campaign is requiring for people to attend a Saturday rally in Tulsa, Oklahoma, would protect businesses in states that don’t have liability limits or immunity from coronavirus-related lawsuits.

The arguments being made by critics of these waivers as quoted in the linked article all follow a few general patterns. Some are saying that waivers will allow businesses to skirt required protections, such as plastic shields, social distancing on the premises or providing suitable PPE. Others note the “onerous” nature of such waiver requirements for employees who may see them as a choice between signing away their rights or losing their jobs. That’s particularly problematic in states where you can lose your unemployment insurance benefits if you turn down a job.

So far, Utah, North Carolina, Oklahoma, Arkansas and Alabama have passed legislation or issued executive orders offering immunity from lawsuits in most cases if the businesses are following all of the rules. Honestly, that should probably be the case everywhere, though I don’t know that any sort of federal order would be appropriate. Given the litigious nature of our society, there are no doubt going to be staggering numbers of these lawsuits cropping up. I’ve little doubt that some of the bigger law firms are already working on class action lawsuits to assault businesses in massive fashion.

But particularly given the nature of the threat we’re facing, most such lawsuits should be defeated in court. If the state establishes particular requirements for how to safely reopen and the employer or business owner can demonstrate that they are following all of them, who is really at fault? Also, such a lawsuit implies that the victim can demonstrate exactly where and when they contracted the disease. Perhaps they caught it at work, but if they also went to a restaurant and visited a friend during the same time period, who is to say how they got it?

Now, just as with most existing OSHA requirements, if an employer opens up and ignores all of the rules and packs people into their old cubicle farms with no PPE and their operation subsequently turns into a hot spot, obviously they should be held accountable. The same goes for stores that decide to not enforce any of the rules or make the required changes to protect their customers as well as possible. We’re living in a new world now, and that’s part of the price of admission.

But if any of these entities are clearly making a good faith effort to follow all of the rules and keep people safe, suing them out of existence isn’t helping anyone. In reality, these new rules provide for a lot more accountability than was ever offered in the past. If you went into work in the winter of 2018/2019 and one of your coworkers infected you and all of your colleagues with the flu, you wouldn’t have much legal recourse against the employer even if some of you died. It wasn’t their responsibility to shield you from a naturally recurring, seasonal disease. Now employers are going to be held to a higher standard. And if they meet that standard, they shouldn’t be losing sleep about an army of opportunistic lawyers coming to suck the life out of them.

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Jazz Shaw 8:30 AM | February 25, 2024