COVID-19 Business Liability Protection: Is It Fair?

Last August, businesses across America began to reopen as lockdowns eased. And as they try to put their businesses back on track, business owners are struggling to figure out how to operate safely without endangering their employees and customers as COVID-19 lurks. 

Meanwhile, authorities are gearing up for a probable wave of COVID-related damage suits in the forthcoming months or even years. To curb the possible tide of lawsuits, some states have passed protection laws. Congress is also contemplating a federal directive.

Understandably, we cannot stay in our houses forever. Life must go on. But as we try to get some semblance of normalcy, the risk of getting the virus is still very real. While brick-and-mortar shops will be following the latest safety regulations, customers and employees will still be vulnerable. For that reason, new laws are being established in some states, and they call it COVID-19 Business Liability Protection.

I. Background

Throughout the country, some large companies are facing lawsuits filed by employees who claim they contracted the coronavirus due to employer negligence. 

Usually, states rarely find businesses liable for employee deaths related to the workplace, according to the Wall Street Journal. That is because it is hard to prove employer culpability and also because states often restrict such complaints to employee compensation systems.

But legal experts in the U.S. agree that the pandemic could change that trend as most of the lawsuits filed are focused on whether businesses followed the minimum health standards for battling the spread of the coronavirus. 

According to legal experts, businesses that failed to follow health standards could be liable in court for employees catching the virus. 

But wouldn’t that scare businesses from operating? Many business owners might find that it is not worth it to reopen their locations if a potential lawsuit could hang over their heads.

II. What is COVID-19 Business Liability Protection?

The lifting of restrictions across the country will see many businesses reopen. As operations begin, owners, employees, and customers are at risk of getting the coronavirus. At the same time, owners and operators of these businesses are also at risk for civil suits and claims as a result of exposing their employees and customers to the virus. They worry that what happened to some major retail chains might happen to them.

For the peace of mind of business owners and to keep the economy running, many states have passed COVID-19 business liability protection measures. Its main purpose is to protect businesses, schools, and other institutions from being liable as long as they are following approved safety guidelines. With such protections in place, future complainants would have to prove without a shadow of doubt the negligence of the business or institution in question.

III. How to protect your business against COVID-19 lawsuits

Congress is still contemplating their next moves as to how to protect everyone both from contracting the virus and getting sued. 

If you are running a business, here are a few things you can do to prevent costly COVID-19 -related lawsuits.

  1. Be familiar with your insurance policy.

Reread your business insurance policy carefully. You might find something there that may help with litigation costs. It may be easy to just call your insurance company, but not all of them act the same way. Some insurance companies may find loopholes and leave you hanging. Andrea Sager, a small business attorney, told Business.com that without a federal law, some small business owners who have insurance might not be covered at all.

  1. Implement CDC health guidelines.

States have different policies. Some do not require the wearing of face masks, nor are there any social distancing policies. Nonetheless, the Center for Disease Control has set guidelines that you can enforce. By doing so, you set yourself up to standards that can hold up in court.

  1. Do not reopen if it isn’t legal.

States have identified which types of businesses can reopen. If your business does not belong on the list, then you should stay closed. If you reopen illegally, then you can be arrested or get fined at the very least. Aside from that, if your business is sued for COVID-related damages, then you will surely lose. So check with local guidelines to find out if your business is allowed to reopen. 

  1. Keep your communication lines open to your employees and customers.

It is important to share information with your customers and employees when dealing with any safety precautions. Let everyone know that you require wearing of face masks and social distancing so they would not have any excuse for not following your rules.

IV. Liability protection established by some states

Some states have enforced some liability waivers that meet their specific requirements. As of August 2020, these states have already begun enforcing measures: Alabama, Arkansas, Georgia, North Carolina, Utah, and Wyoming. Those who have measures in the works are Arizona, Iowa, Louisiana, Minnesota, Mississippi, Ohio, Pennsylvania, New Jersey, New Mexico, New York, South Carolina, and Tennessee.

While provisions vary by state, there are some similarities in what the lawmakers for each state have implemented.

  1. It does not protect willful negligence

State governments did not include businesses that failed to comply with the established safety policies in this list. If proven guilty, no protection will be accorded to them.

  1. Retroactive protections

When COVID-19 first began to spread, there were no available tests yet. Due to that fact, some states have backdated their rules to January 1 while some opted to backdate theirs to mid-March only.

  1. Protections for healthcare providers

Some states have also made amendments to their policies that protect medical practitioners from potential litigation.

V. The case against COVID-19 liability protection

Timothy Lytton, in an article for USA Today, argues that COVID-19 liability protection is not the answer to this crisis. The most effective way to curb the virus is for businesses to know that potential lawsuits are waiting for them should they be careless about utilizing health safety measures in their businesses.

However, as we have pointed out earlier, willful negligence by businesses will not exempt them from possible lawsuits.

VI. Conclusion

Whether there are protections in place or not, businesses should take it upon themselves to protect their employees, customers, and themselves from the virus that has already claimed the lives of millions. It should never be the fear of being sued that should drive them toward precautions, but rather a sense of responsibility in keeping everyone safe. 

With that said, some form of protection from lawsuits will probably give business owners a gentle nudge to reopen. Our economy needs all the help it can get, and we expect small businesses to be at the forefront if our economy is to fully recover.

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