Why Businesses Should Not Be Immunized from Liability for COVID-19 Injuries
By Carl H. Coleman
At a Senate Judiciary Committee hearing earlier this week, business leaders renewed their calls for legislation shielding companies from lawsuits by employees or customers infected with COVID-19. Senate Majority Leader Mitch McConnell has made immunizing businesses a “top Republican priority for the next coronavirus relief bill,” with supporters arguing that limitations on liability are necessary to give businesses “the certainty they need to reopen.”
Some states have already acted to protect businesses from lawsuits. For example, Utah has granted businesses immunity from civil liability for damageus or injury resulting from exposure to COVID-19, except in cases involving reckless, willful, or intentional misconduct. North Carolina has adopted similar legislation, but it is limited to the health care industry, essential businesses, and emergency response entities.
Giving businesses broad immunity from liability for COVID-19 injuries is a bad idea for many reasons, including the following:
1. The likelihood that a business would be found liable for causing a COVID-19 infection is already low
A plaintiff seeking to hold a business liable for a COVID-19 infection will face two significant hurdles. First, she must show that her infection was caused by an exposure at the business, as opposed to an exposure somewhere else. This showing will be very difficult to make. It can take up to two weeks for symptoms to appear after exposure to the virus, during which time most people are likely to have been in contact with multiple possible routes of infection. In most cases, establishing that the infection was caused by a specific event at a particular establishment will be impossible.
Second, even if a plaintiff can somehow show that her infection was caused by an exposure that occurred at a particular place of business, that alone would not be sufficient to establish liability. Instead, the plaintiff must also show that the business acted negligently – i.e., that it failed to act like a reasonably prudent person. Businesses that comply with public health guidelines and adopt basic safety precautions are unlikely to be found to have violated that standard.
2. Eliminating all liability risk for businesses would be contrary to public health goals
While most plaintiffs will have trouble establishing that they were infected with the coronavirus as a result of a particular business’s negligence, if someone can make that showing, allowing them to recover damages furthers important public health goals.
One of the primary goals of tort law is to incentivize people to exercise reasonable care to avoid foreseeable injuries. Businesses should know that, if they fail to follow public health guidelines or conform to industry standards, they run the risk of legal liability. The public’s interest in incentivizing appropriate behavior is particularly great in this context because businesses that negligently contribute to the spread of COVID-19 cause harm not only to individual plaintiffs but to the community at large.
3. Liability claims by employees are likely to be shielded by worker’s compensation laws
While some businesses have expressed concerns about liability claims by employees exposed to the coronavirus at work, in most situations, worker’s compensation is the exclusive remedy for employees who suffer on-the-job injuries. This means that employees who are eligible for worker’s compensation are precluded from suing their employers for tort damages, with the exception, in some states, for cases involving gross negligence or intentional misconduct.
Admittedly, in some states, the application of worker’s compensation laws to infectious diseases can be uncertain, with some state laws limiting coverage to “occupational diseases” as opposed to “ordinary diseases of life.” However, courts that have refused to characterize infectious diseases as occupational diseases for purposes of worker’s compensation often do so because of the absence of evidence that the employee contracted the disease through an on-the-job exposure. While employees in these cases would theoretically be free to sue their employers for tort damages, they are unlikely to prevail if there is no evidence that that they contracted the disease through their jobs.
In addition, some states have enacted, or are considering enacting, laws providing that, when workers in certain fields like health care contract COVID-19, it will be presumed that they did so as a result of an occupational exposure. These laws remove any doubt that these workers are eligible for worker’s compensation, thereby foreclosing the possibility of tort litigation (with the possible exception of cases involving gross negligence or intentional misconduct, depending on the state).
4. Providing “safe harbors” for businesses that comply with public health guidelines is not a reasonable solution
The U.S. Chamber of Commerce has suggested that, rather than giving businesses blanket immunity from liability, businesses could be protected by a “safe harbor” that shields companies from liability if they comply with specified public health guidelines. However, it is a basic principle of tort law that, while compliance with official guidelines is relevant to assessing negligence, the fact that the defendant adhered to all applicable laws and policies is not an absolute defense. There is no reason why compliance with public health guidelines related to COVID-19 should be treated any differently.
It is easy to see how someone could comply with laws and guidelines but nonetheless act unreasonably. For example, think of a person who drives just under the legal speed limit on a rainy night with limited visibility. If the driver skids and hits a pedestrian, the fact that she was technically not speeding does not mean that she exercised reasonable care.
Treating compliance with public health guidelines on COVID-19 as a safe harbor would be especially inappropriate in light of the vague way that many of these guidelines are written. For example, the CDC’s Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools and Homes directs businesses to “consider wiping public surfaces before and after you touch them.” Technically, a business owner could comply with this guidance by thinking about wiping down public surfaces and then deciding not to do it. It would make no sense to treat this kind of compliance as an absolute defense.
5. Immunity is not necessary to protect businesses from a flood of unfounded lawsuits
Some business leaders claim that, without liability protection, businesses could face “a flood of litigation,” and that responding to unfounded claims “will be very costly and time-consuming.” Yet, the fear of having to defend against a flood of frivolous lawsuits ignores the fact that personal injury lawsuits are typically brought by lawyers on a contingency fee basis. Because lawyers only get paid if they win, they “have no incentive to bring sure losers, and they risk being disciplined for professional misconduct if they do so.”
While it is possible that some meritless cases might still be brought, that risk exists in all areas of litigation. The possibility that businesses might occasionally need to defend against meritless lawsuits is unavoidable in a society that gives its members the ability to seek justice in the courts. In any case, the likelihood of meritless claims being brought against businesses related to COVID-19 infections is lower than in other areas of tort litigation, such as medical malpractice, given the difficulties discussed above with respect to establishing causation.
Carl H. Coleman is a Professor of Law at Seton Hall University School of Law and specializes in the legal, ethical, and public policy implications of medical treatment, research, and public health. He also currently serves as Academic Director of the Law School's Division of Online Learning. Professor Coleman's biography and publications are available online.