While Congress deliberates the next round of coronavirus relief legislation, some states have moved forward with laws that shield certain businesses from coronavirus-related liability.
Sen. Mitch McConnell, R-Ky., and other Republican lawmakers have made liability immunity a priority as more businesses reopen. “The Senate majority is not going to stand idly by and let trial lawyers vacuum up relief money & redirect it into their own pockets,” McConnell tweeted.
Some leading Democrats, however, have resisted such proposals. “Why does Senator McConnell think that major corporations should be exempt from liability when they force their workers to come back and they get sick?” Sen. Chuck Schumer, D-N.Y., tweeted back.
Meanwhile, many states, including Arizona, Connecticut, Illinois, Massachusetts, Michigan, New Jersey and New York, have passed laws granting immunity from COVID-related legal liability for certain health care workers and facilities, as well as nursing homes. Some states have gone further to grant immunity for a broader range of businesses and employers.
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Some states are providing immunity from COVID-related liability for a wide range of businesses. North Carolina’s law protects “essential businesses.” Utah’s law shields all businesses and individuals from litigation when people are exposed to COVID-19 on their property—though there is an exemption for intentional acts. Oklahoma lawmakers approved a similar measure that is pending the governor’s signature. More states, including Alabama, Illinois, Louisiana, Ohio, South Carolina and Wyoming, are also considering laws to extend coverage beyond the health care industry, according to the National Conference of State Legislatures.
Some experts say states are in a better position than the federal government to adjust laws and remedies for civil injuries. “The practical realities of trying to reopen the economy, combined with the constitutional limitations of federalism, make it more likely than not we will have a patchwork of state-based immunity shields rather than a nationwide set up,” said legal analyst Brad Moss.
Some Federal Protections
Businesses that provide products and services related to the COVID-19 pandemic should note that they may have some liability protection under the 2005 Public Readiness and Emergency Preparedness (PREP) Act. The PREP Act provides that, during a public health emergency, the Secretary of the U.S. Department of Health and Human Services may make a declaration regarding the manufacture, testing, development, distribution, administration or use of “covered countermeasures” and provide immunity from liability to certain businesses and individuals for claims of loss arising out of the administration or use of those covered countermeasures. A “covered countermeasure” may include certain drugs, biological products or medical devices.
National Safety Standards
Some Democrats in the U.S. Senate are open to adding business liability protection to the next coronavirus relief package. Sen. Christopher Coons, D-Del., for example, said he would consider business liability protection if the legislation also helps workers and distinguishes between responsible and irresponsible businesses. For Coons, businesses would have to follow national standards to protect workers. “I don’t support a path forward where we don’t offer clear regulatory guidance and don’t offer liability protection for workers,” he said.
The Next Federal Relief Package
Democrat and Republican lawmakers agree that Congress will likely have to pass another coronavirus relief package. The Democrat-controlled U.S. House of Representatives passed the $3 trillion Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES) Act on May 15. The proposed legislation includes a number of provisions that would impact the workplace, such as broader paid leave rights and expanded unemployment benefits. The HEROES Act, however, isn’t expected to pass the Republican-controlled Senate. McConnell said the next relief package would have to be more narrow than the House proposal and provide liability protections for businesses as the economy reopens.
How to Practice COVID-19 Safety When Reopening Your Retail Business
Brick-and-mortar retailers were already struggling before COVID-19. Now, as states slowly begin to reopen, these businesses must figure out how to keep workers and customers safe while simultaneously adhering to government guidelines and employment laws and trying to maximize profits. For those reopening their retail stores soon, here are some tips to ensure that the process goes as smoothly as possible.
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