States Push Liability Protections as Businesses Reopen

By FOCUS, a Leonine Business

Returning to work in the time of COVID is seen across the political spectrum as both a highly treacherous process and an economic necessity. Facing massive losses to their personal finances, many workers and families simply can not afford to continue living without a steady paycheck, while businesses across the nation have shuttered with little chance of reopening. Compounded by record job losses and a contracting GDP, many state leaders have been aggressive in reopening their states to reboot the economy, in spite of the associated risks of going “back to normal”.

This economic downturn, coupled with the reality that cases continue to rise in many areas around the country, has created both an eagerness and an apprehension for workers and business owners. For frontline medical workers, the situation is more pronounced, as many are required to work in an environment where they may catch or transmit the virus with ease. To ease these concerns, governors and legislators have begun to take a close look at liability issues arising from the COVID-19 crisis, notably protection from lawsuits for medical workers and for businesses.

Of these two groups, liability protection for healthcare workers has been far more common and less controversial. Executive orders have been signed and laws passed in numerous states to protect providers from medical malpractice lawsuits arising from alleged negligent care during the COVID-19 crisis. The U.S. Department of Health and Human Services and the American Medical Association have both recommended that states adopt some form of liability protection for medical workers. Protections for businesses, however, have proven far more controversial.

While major business groups, including the Chamber of Commerce, have called for business liability protections as states begin to open-up, far fewer states have been willing to grant such broad, blanket protection. Lack of action on the issue has left business owners wondering whether they may face liability lawsuits after opening if a customer or worker catches the coronavirus on the premises after reopening. Inversely, many workers have also been left in the dark regarding any legal protections they may have when returning to work. While some action has been taken at the state level on this issue, many are now looking to the federal government for broad, national guidance.

While few state legislatures are currently in session, that hasn’t stopped a flurry of activity in recent months on the issue, with at least 68 bills relating to COVID-19 liability across 23 states. With state legislators out of session, and reluctant to meet due to coronavirus concerns, much of the onus has fallen on state governors. To date, Alabama, Arizona, Arkansas, Connecticut, Georgia, Hawaii, Illinois, Massachusetts, Mississippi, North Carolina, Oklahoma, Pennsylvania, Utah and Virginia have seen executive action taken on liability issues, with more likely to come in the future. Maryland, New Jersey and New York have also passed liability protections, while groups in California are pushing the governor to provide liability protection for health workers.

The issue of liability for businesses has remained a major issue in the U.S. Congress as Senate Republicans, backed by business leaders, have called for blanket business liability protections in any future coronavirus stimulus package – going so far as to call it a “red line” in any future legislation. The issue remains pending, with Democrats pushing back against the issue, arguing that protection is needed for workers putting themselves in such a precarious position.

With states continuing down the path towards full opening – sometimes in spite of rising coronavirus cases – liability reform is going to take center stage over the next several months, both at the state and federal level. Alongside protections for businesses and healthcare workers, expect to see Democrats pushing for increased protection for workers and individuals.