As Phase One of reopening begins in Northern Virginia, a waitress with a face mask to protect against the coronavirus disease (COVID-19) serves diners at a restaurant in Alexandria, Virginia, U.S., May 29, 2020.
Kevin Lamarque | Reuters
As U.S. stores, restaurants and offices reopen in some parts of the country following coronavirus shutdowns, many businesses are worried they’ll see an uptick in lawsuits from sick workers and customers.
Thomas Ward, founder of Pig Floyd’s Urban Barbakoa in Orlando, Florida, said he’s taken the proper safety precautions at his restaurant, but some customers continue to show up without masks. Ward fears this could lead to an employee catching the coronavirus and, later on, a lawsuit alleging he didn’t do enough to protect them.
“As small businesses, we have to protect ourselves because there are frivolous lawsuits out there,” Ward said. “We follow all the rules with temperature checks, gloves, masks, stickers on the floor for social distancing, but a lot of customers aren’t wearing masks.”
Business owners’ concerns have caught the attention of Congress, as lawmakers weigh the possibility of passing another Covid-19 stimulus package. Senate Majority Leader Mitch McConnell said he would push to include liability protections for businesses in upcoming legislation.
“If there’s any red line, it’s on litigation,” McConnell said last month. “The litigation epidemic has already begun.”
The move has garnered broad support from Republicans in Congress, who argue businesses need greater protection from lawsuits by customers or workers who catch the virus and say the business was the source of the infection. Without these protections, they say businesses will be hampered by lawsuits, which could slow down their efforts to reopen. Business groups such as the U.S. Chamber of Commerce and the National Association of Manufacturers (NAM) are also lobbying for Congress to pass the legislation.
Democrats, including Speaker Nancy Pelosi, have said they’d fight limits to litigation, arguing such proposals could restrict workers’ right to sue. Labor advocacy groups also say these protections have the potential to shield bad businesses that aren’t doing enough to protect their employees, which could put workers’ lives at risk.
“The courts are a complementary feature for holding people accountable,” said Remington A. Gregg, counsel for civil justice and consumer rights at Public Citizen. “So if you take away an employee’s right to go to court, then there’s absolutely no way for workers to hold bad actors accountable.”
Business groups advocating for the proposal have stressed to lawmakers that a legal shield would be limited to the pandemic and that it’s not meant to relinquish workers’ ability to sue their employer. McConnell has previously suggested the shield would protect employers between December 2019 through 2024.
“We’re not interested in protecting bad actors, which is why we’re not looking for a blanket liability shield,” said Linda Kelly, general counsel for the National Association for Manufacturers. “We’re asking for a heightened standard to apply before liability would apply.”
If immunity isn’t granted at the federal level, some businesses may still be shielded from lawsuits as a result of state laws.
Arizona, Massachusetts, New Jersey and New York are among several states that have passed laws providing immunity from coronavirus-related lawsuits for certain health care facilities, while laws in Iowa, North Carolina and Utah protect a broader range of businesses. Louisiana passed a bill last month that bars diners from suing a restaurant and claiming it gave them the coronavirus.
At least six states have passed bills that allow businesses to require that customers sign waivers, saying they won’t sue if they catch the coronavirus.
“No wave of litigation”
McConnell and other lawmakers have raised alarms about an onslaught on coronavirus-related lawsuits, but not everyone is convinced that litigation will flood in as expected.
A “second pandemic” of coronavirus-related lawsuits “has not materialized” since McConnell began issuing warnings back in April, said Peter Knudsen, communications director for the American Association for Justice, a trade group representing trial lawyers. Sen. Chris Coons (D-DE) echoed that position at a recent Senate Judiciary Committee hearing on the proposal, saying there’s been “no wave of litigation.”
An online tally collected by law firm Hunton Andrews Kurth shows that, as of Wednesday, more than 2,840 coronavirus-related complaints have been filed since Jan. 30. The majority of those lawsuits have been brought by businesses over insurance coverage, while hundreds were filed by prisoners. Roughly 50 cases were brought due to claims of a lack of personal protective equipment, exposure to Covid-19 at work, wrongful death or personal injury.
Meat-processing plants, cruise ship operators and nursing homes have been hit by the bulk of lawsuits during the pandemic. Other businesses, including Walmart, Amazon, McDonald’s and Safeway have also faced lawsuits claiming they didn’t do enough to protect workers.
Kelly, the NAM general counsel, said these kinds of lawsuits could be “trial balloons” for a future wave of litigation.
“The fear of our members is that there’s kind of an effort to float some trial balloons and see what kind of claim is going to stick,” Kelly said. “Once the path to success is kind of blazed, then more lawsuits will follow.”
Challenging to prove
In most workplace lawsuits, it will be significantly challenging for employees to prove they contracted the coronavirus while at work, rather than through other means, such as riding public transportation or shopping at the grocery store, said Megan Bisk, a partner in the labor and employment practice at Ropes and Gray, a law firm.
“The employee would have to prove causation,” Bisk said. “And they’ll have the additional burden, which they wouldn’t have in collecting workers compensation benefits, in proving that the workplace was at fault. That it breached some duty of care.”
Facing a challenging legal battle, employees may be more likely to avoid a lawsuit and instead file a worker’s compensation claim. Workers compensation benefits, along with their requirements and penalties, vary from state to state.
During the pandemic, states including California, Michigan and Kentucky have sped up the process to receive workers compensation benefits, by making it easier for workers to prove they got sick while on the job. Employers can still deny the claim, but it removes some of the burden of proof from workers.
While few coronavirus-related lawsuits have been filed by employees so far, businesses can still take steps to protect themselves from litigation by making sure they’re up to speed on the proper regulatory guidelines, said Karl Lindegren, a partner with Fisher Phillips, a law firm.
That could include designating an employee or an entire team to monitor the various guidance from governments and public health agencies around workplace safety during the pandemic. Businesses’ goal should be to make sure they’re “complying as best as they can,” Lindegren said.
“The coronavirus has been around long enough now that [employers] better get serious about what they’re doing,” Lindegren said. “Those who don’t pay attention are going to have a problem.”