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As COVID-19 Lawsuits Are On The Rise, Can The Senate Protect Employers?

COVID-19 has changed the way all businesses operate as the country attempts to reopen following the varying quarantine orders experienced coast to coast. As the nation moves to open and uplift a hurting economy, concerns over liability have been at the forefront of discussions for the Senate Judiciary Committee. The hearing itself was conducted while social distancing, with some members calling in through video conference.

Some on the committee are calling for broad immunity for businesses, which would limit their liability in the event that customers or employees contracted the Coronavirus while on their property or at work. Involved in the debate are all walks of business from convenience store owners to higher education representatives. A decision of legal immunity would impact the entire country and has become a lively debate among the political parties.

There is a Republican push for legal immunity, even if only for a limited time, to protect people and business owners while they do their best to follow guidelines and mitigate risk. An argument against this form of legal immunity was raised by some Democrats, such as Sen. Amy Klobuchar, citing worry that consumers and workers would be left unprotected without scientific guidance from the White House and the CDC about how to open and operate safely. She says that without these guidelines, people need the ability to go to court. Members for both parties did agree that creating a set of clear operating guidelines for reopening is a way businesses can potentially have protection from getting sued.

Chairman Lindsey Graham, a Republican from South Carolina, argues that if business owners are putting in the time and resources to follow said guidelines, they should not also face the added risk of being sued in the likely event that someone contracts the virus. Attorney Christopher Nicolaysen of the Springs Law Group LLC says, “The debate for legal immunity for medical workers fighting on the frontline occurred during the height of the pandemic response. Now, as we try to reopen, it is time to have that same discussion for business owners trying to operate and stay afloat while not putting consumers at risk.”

Business owners spoke out at the Senate Committee hearing as well, worrying about their current financial status and how a lawsuit could affect that. There is a worry that those who are already struggling financially due to the economic downturn will not survive a COVID-19 lawsuit. The idea is that a limited form of legal immunity would give business owners the time to get back on their feet while doing the best they can to create a safe environment.

Senator Richard Durbin of Illinois said that currently, only 27 of Coronavirus related lawsuits were personal injury cases and nine were medical malpractice cases. This suggests that after several months of a pandemic, lawsuits have remained in low numbers.

Georgetown Law Professor, David Vladeck raises the concern that limiting lawsuits to only pursuing cases of “gross negligence” could end up including what he called “bad actors.” Meaning, if only cases of gross negligence are allowed to be filed, those acting irresponsibly but still actively spreading the virus wouldn’t face legal repercussions. It adds to the worry of some that this type of immunity will excuse people from being held responsible for the safety of their patrons. He also adds that given what we know about how the virus acts, it would be very hard to actually directly point to a specific business being responsible for someone getting sick.

The President of the United Food and Commercial Workers International Union (UFCW), Marc Perone shared an opinion that falls in line with Vladeck in that immunity would possibly do more harm than good. UFCW represents workers in the meatpacking industry, a field that has been very strongly affected by the pandemic. According to Perone, 25,000 of his members worldwide contracted the Coronavirus and 162 of them have died. He states that he does not believe granting broad immunity to employers will help make them responsible. He believes that legal immunity like what is being proposed will cause problems with what he refers to as “outlaw businesses.”

A major consideration in the reopening debate is the availability of testing. Widespread testing would provide more information for businesses about employees and customers so that they can make more informed choices about operating.

Higher education is also part of the discussion as they wait for guidance on how to move forward. Leroy Tyner spoke on behalf of the American Council of Education stating that the spread of the virus when universities reopen is possibly inevitable. This is yet another concern as the debate for whether or not legal immunity will be given temporarily to those doing their best to operate while mitigating risk. The debate is as strong as it was for legal immunity for medical workers. The coming weeks of reopening will show what the country is truly up against.

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