Lawsuits threaten to derail economic recovery

By Phil Goldberg

As governors start lifting stay-at-home orders, businesses, schools, non-profits and houses of worship are trying to figure out how to reopen safely. A driving concern for many employers has been the fear of getting slapped with lawsuits if their workers or customers contract COVID-19.

It’s a reasonable fear; the pandemic is already inflaming America’s legendary litigiousness. Hundreds of COVID-19 lawsuits have already been filed. Law firms tout their “Coronavirus Litigation Task Force” as they troll for clients. Employees and customers who do not have COVID-19 have sued businesses because they feared they were at risk of catching it. Even some factories deemed “essential” have been labeled “public nuisances” for asking courts to determine the safety measures businesses must take.

Judges are not qualified to make these calls; government health experts are. But we’re in uncharted territory. America has never experienced anything like this pandemic or virus-induced freeze on economic and social activity. The experience over the past three months has been that federal and state public health guidance is vague, variable and sometimes contradictory.

Recently, the Centers for Disease Control and Prevention (CDC) finally issued some guidelines for childcare programs, schools, high-risk workers, restaurants and mass transit. CDC officials emphasized that there is no one-size-fits-all solution: “Establishments may choose those that make sense for them in the context of their operations and local community, as well as State and local regulations and directives.”

Opportunistic litigators thrive in this atmosphere of uncertainty. Without a common definition of what constitutes negligence, the standard employers will be judged against is anything the plaintiff’s lawyer can convince a jury it should be. If workers get COVID-19, lawyers will argue that whatever safety protocols an employer adopted were not enough to protect the plaintiff.

Employers are pleading with national leaders to provide standards that can help courts focus COVID-19 litigation on truly bad actors. Unfortunately, Washington is mired in the usual partisanship. Republicans and business groups have called liability waivers over COVID-19 claims their “red line” for supporting the next relief bill. Democrats, backed by trial lawyers, steadfastly oppose what they call “blanket immunity” for employers.

In refreshing contrast, outside of the Beltway there is bipartisan support for COVID-19 liability protections. Governors Cuomo in New York and Pritzker in Illinois, among many others, issued executive orders protecting health care providers from lawsuits because doctors, nurses and patients cannot be protected from getting COVID-19. Other governors, including Democrats in Kentucky and North Carolina, have expanded these protections to other businesses and entities.

The impasse in Washington must be broken. There is an opportunity for pragmatic lawmakers to craft an alternative to the “all or nothing” choices posed by arch partisans — a “safe harbor” for employers who generally follow clear national standards for configuring workplaces and operating in ways designed to minimize the risk of spreading COVID-19.

There appears to be room for such a compromise. Linda Lipsen, executive director of the American Association for Justice, which represents trial lawyers, said it would “have no problem” with a bill where “reasonable conduct would be protected,” but not “bad actors.” They also released a poll finding about 60 percent of Americans oppose protecting businesses if the plaintiff “could demonstrate that the company engaged in unsafe practices.”

Following these guideposts, Congress should enact legislation that protects employers against traditional negligence claims over actual or potential exposures to the coronavirus. Viral diseases like COVID-19 obviously should be treated differently than hazardous workplace conditions, such as asbestos exposure. Employers should not be subject to broad litigation for a natural phenomenon they cannot control.

In addition, to curb speculative litigation, the legislation should require people filing COVID-19 lawsuits to establish their right to sue by specifying what the employer did to create an “unsafe” condition that allegedly caused them to get sick. “Unsafe” should be defined as recklessly disregarding what generalized guidance there is from federal public health officials, such as what CDC recently released, making it highly likely the plaintiff would get COVID-19.

Finally, the legislation should include assurances that when America’s infectious disease experts, through CDC guidance or the Occupational Safety and Health Administration (OSHA) rulemaking, provide COVID-19 protocols tailored to a specific facility, complying with them creates a safe harbor from litigation. There will always be risks, and employers need to know what they are expected to do to help reduce those risks.

For now, organizations of all kinds need legal certainty to re-open, hire workers and provide the goods and services people need. Otherwise, lawsuits will undermine the massive investment Congress made in keeping the economy afloat. It is time for Congress to put America’s safety and recovery ahead of predatory lawsuits.

Phil Goldberg is the director of the Progressive Policy Institute’s Center for Civil Justice. He also is the managing partner of Shook Hardy & Bacon, LLP’s Washington, D.C. office.