A new wave of infection threatens the U.S. economy in the form of opportunistic pandemic lawsuits. And Congress should be compelled to provide the antidote.
Congress has the power to muster a bipartisan agreement that would provide reasonable and temporary protections to businesses, schools, nonprofits and other organizations that have or are attempting to reopen.
Businesses that have managed to stay afloat and keep employees paid through shutdowns and the virus’ effects on consumer habits shouldn’t be further burdened by crippling litigation.
As Democrats and Republicans come together to formulate another round of much-needed coronavirus aid — to the tune of more than $1 trillion — they’re predictably mired down in tired ideological disputes about liability protections for U.S. businesses, universities and schools.
Some Republicans want to shield businesses and other organizations from personal injury lawsuits related to the virus. Some Democrats oppose these protections.
Opponents of liability shields argue the threat of lawsuits is exaggerated because of the difficulty of proving where someone was infected.
But proving the case isn’t the whole issue. Defendants can spend many thousands of dollars getting the weakest lawsuit dismissed on summary judgment. That will be money better put in the pockets of working Americans.
“Providing some kind of blanket immunity shield is an idea that’s the result of the majority leader’s imaginary boogeyman of a flood of lawsuits, a parade of horribles that is a political ploy,” Sen. Richard Blumenthal, D-Connecticut, said in May of the debate that’s been churning for months, according to the Washington Post.
The American Association for Justice, which represents trial lawyers, said personal-injury cases account for 161 of the 3,400 COVID-related lawsuits filed so far, news service Reuters reported this week.
Meanwhile, business owners and leaders representing higher education aren’t so certain the potential for lawsuits is exaggerated.
Industry groups that represent restaurants, retail, travel, tourism, hotels and other businesses sent a letter on May 11 to congressional leadership urging liability protections in the next coronavirus relief bill, according to the U.S. Chamber of Commerce.
“As you know, even with extraordinary protective measures, our employees or customers could still contract COVID-19 due to the extremely contagious nature of the virus. We fear that without Congressional action, the threat of litigation — even for those companies that faithfully follow federal public guidelines — will mire our recovery and negatively impact the economy writ large,” the groups wrote.
The American Council on Education, on behalf of a group of more than 70 higher education associations sent a letter on May 28 to Congressional leadership urging quick enactment of temporary, targeted liability protections related to the COVID-19 pandemic, according to the national chamber organization.
A real solution doesn’t call for “blanket” protections that Democrats fear.
Earlier this month, Rep. Garret Graves, R-Louisiana, and Rep. Henry Cuellar, D-Texas, introduced bipartisan legislation they call “Get America Back to Work Act,” or H.R. 7528, which they say provides liability protection to businesses from COVID-19 claims “provided they made good-faith efforts to comply with federal, state and local guidance or appropriate industry standards.”
Importantly, the bill doesn’t provide liability protection in cases in which there is willful or criminal misconduct or gross negligence to the safety of an individual, Graves and Cuellar said.
“In these cases, damages cannot be sought unless there is serious bodily injury,” according to the bill.
The proposed legislation would have an expiration date and would be in effect from Jan. 1, 2020 to 18 months after the end of the emergency period and would apply to claims made before the enactment. The legislation would provide preemption from state laws unless state laws provide greater liability protection.
Businesses, universities and other organizations have been battered enough by the virus. They don’t need frivolous lawsuits to worry about, too.
“Without temporary liability protections, many companies face a daunting choice: stay closed and risk bankruptcy or reopen and risk a business-crippling lawsuit,” the U.S. Chamber of Commerce has told lawmakers. “We must be focused on a bipartisan strategy to get the American economy back on track safely and sustainably, and unwarranted lawsuits against businesses will hinder economic recovery.”
Congress should act in the best interest of employers, employees and the economy and come to a bipartisan agreement.
• Laura Elder