As businesses operate amid the COVID-19 pandemic, leading industry organizations want federal guidelines and legal protections in place that would limit their liability in coronavirus-related litigation.
With so much still unknown about how the virus spreads, businesses need some sort of safety net to guard against lawsuits from workers or customers who may contract the virus, Patrick Hedren, deputy general counsel for the National Association of Manufacturers (NAM) told the Northern California Record by email.
“Essential businesses, those that have been open during state quarantines to meet critical needs, know how confusing the legal situation has become,” Hedren said. “We are about to see many more businesses, especially those that are small and medium-sized, begin to grapple with this still very confusing landscape when we begin to reopen the country.
“Federal guidance has been evolving – for example, CDC only began suggesting that some individuals wear cloth masks around two weeks ago - but it is best for industry to be able to look to one authoritative source compared to a patchwork of conflicting sources of information. Some of the most difficult issues manufacturers have dealt with really have involved direct conflicts between state and federal orders and guidance. We want to minimize that confusion as much as possible and concentrate on letting science and evidence drive the safety conversation in particular.”
President Donald Trump on Tuesday issued an Executive Order to keep meat processing plants operating, and suggested potential legal protections against lawsuits by employees claiming they contracted COVID-19 while on the job.
Senate Majority Leader Mitch McConnell, R- KY, said in a news release this week that Congress would be back in Washington May 4 to “conduct critical business in person.”
McConnell spokesperson Doug Andres emailed the Record a joint statement issued by McConnell and House Republican leader Kevin McCarthy on Friday:
“As the nation continues fighting this pandemic and parts of our economy begin to emerge from shutdown, Senate and House Republicans are united in our demand that healthcare workers, small businesses, and other Americans on the front lines of this fight must receive strong protections from frivolous lawsuits. We cannot let a second pandemic of opportunistic litigation enrich trial lawyers at the expense of Main Street and medical professionals,” the statement said.
“Senate and House Republicans agree these protections will be absolutely essential to future discussions surrounding recovery legislation.”
The legal landscape should improve as rules and guidance become increasingly clear, Hedren said. Current liability concerns center on, ”an unclear standard of care or in other words a sense for how a reasonable company should operate,” he added.
“A lot of the lawsuits we are worried about are actually very unlikely to succeed in court. Demonstrating clear causation for where someone may have contracted COVID-19 is a difficult proposition and it will become even more difficult as normal life resumes to some extent. But even though these cases are difficult to prove, they are expensive to defend, and the suits are a serious economic threat to companies that are already facing economic hardships in the current crisis. That creates a lot of pressure on companies to settle early simply to avoid legal costs, and therefore a big incentive to bring those suits. This simply isn’t the right time or the right approach if we’re going to maintain critical operations and then begin to rebuild our economy,” Hedren said.
Litigation concerns also have led a coalition of California groups to ask state lawmakers to intervene.
“It’s important that we address mounting litigation threats for all private organizations providing essential goods and services during the COVID-19 pandemic,” Kyla Christoffersen Powell, President and CEO of the Civil Justice Association of California (CJAC) told the Record by email.
The CJAC, along with a coalition of more than 40 organizations, in a letter last week urged California Gov. Gavin Newsom to provide civil liability protections, and they support similar efforts at the national level.
“Ensuring protections are in place when the lockdowns lift is imperative, because that will mark the beginning of a crucial rebuilding period for businesses and the economy. Courts will also be reopening, providing greater opportunity to litigate,” Powell said.
With the pandemic continually evolving, the manufacturing industry would like to see legal safeguards in place soon.
“As we continue to battle COVID-19, it’s been proven that manufacturers are part of the essential economy and have worked hard to provide our country with the essential items that we all need—whether that be food, medicine, PPE or hand sanitizer. So it’s necessary for those trying to do the right thing for the American people, including their employees, in incredibly uncertain times to receive a measure of protection,” Hedren said.
“Truly bad actors, those that recklessly or intentionally harm people, should still subject to tort liability – but we need to protect those who have stepped up and done the right thing in our time of need,” he added.