As business reopens, liability question looms: 'It’s one of the big uncertainty areas of the pandemic'

With the COVID-19 pandemic impacting the economy across California and the nation, businesses face an unprecedented uncertainty that many believe requires liability protections to mitigate.

“There have not been a lot of lawsuits but there’s been a few; it’s one of the big uncertainty areas of the pandemic,” Adrian Moore, vice president of policy at the Reason Foundation, told the Northern California Record. “You’re hearing from chambers that businesses are worried that if a business opens up and employees or customers get sick that they could be liable.”

“There’s no well-established standard about what are appropriate precautions, so clearly a lawyer could have a field day with that,” Moore said.

Congressional leaders have said a bill to expand liability protections amid the COVID pandemic is under discussion. 

“I think actually that Congress will try to deal with this,” Moore said. “They’re not going to write it for every industry, but set requirements and then let states or industries develop their own guidelines and requirements based on the law.”

In the absence of clear standards, some businesses have indicated they are hesitant to reopen.

“What we see in news and various reports, not a lot just want to stay closed. Where I am, restaurants have been allowed to reopen for a month but some are still only doing takeout,” Moore said. “Demand is down and there’s a mix of influences at work, but enough people have raised the concern about liability.”

Presumably, liability protections would be intended to encourage reopening, Daniel Farber, Sho Sato professor of law and faculty director, Center for Law, Energy, and Environment at the University of California, Berkeley, said in an email response to the Record.

“These laws would protect businesses from some unfounded lawsuits. On the other hand, they would also reduce the incentive for businesses to take reasonable precautions,” Farber said.

“No one is talking about blanket immunity,” Moore said. “What we want is immunity as long as you’re being reasonable.”

“If liability is slowing down getting people back to work, then let’s fix that,” Moore said. “If we don’t there’s going to be fewer people going back to work and we’re all going the pay the price for that, that’s the bottom line there.”