Businesses need protections from frivolous virus suits
As businesses and schools do all they can to stay open during the pandemic, many are peering nervously over their shoulder.
They fear they could be sued if someone alleges they caught the coronavirus on their property.
Several states have passed laws that make it difficult to sue for those claims. Pennsylvania lawmakers tried to do the same, but the legislation they passed was vetoed Nov. 30 by Democratic Gov. Tom Wolf.
I hope lawmakers take another crack at it next year, because protections are warranted.
In his veto of the legislation, which was supported primarily by Republican lawmakers, Wolf said a broad liability shield “invites the potential for carelessness and a disregard for public safety.”
He said the state should “not be providing protection for noncompliance or carelessness.”
He’s right about that. There should be no sympathy for businesses and others that refuse to follow public health rules.
If they aren’t consistently requiring customers and employees to wear masks and socially distance, limiting their capacity and sanitizing adequately, then there should be repercussions if people get sick. And those repercussions should include lawsuits.
The legislation Wolf vetoed, House Bill 1737, would have allowed lawsuits. It just would have set a high bar for them to succeed.
Plaintiffs would have been required to prove gross negligence or willful misconduct. It would have meant proving there was reckless disregard or extreme indifference for safety.
Strong lawsuits could have proceeded, while the law would have deterred weaker ones from being filed, perhaps in the hopes of reaching a settlement.
That’s reasonable considering the unique situation presented by the coronavirus, where safety needs are being balanced with economic, educational and social needs.
Restaurants, stores, manufacturers, warehouses, child care centers, nursing homes, schools and other entities have a lot of rules to follow, and those rules have changed often. If they are making good faith efforts to comply and are correcting any mistakes or shortcomings when they are pointed out by authorities or customers, then there should be a high bar to sue them over any virus exposure.
I believe a many coronavirus lawsuits are long shots anyway. It can be difficult to prove where someone caught COVID-19, except for those in prison or a nursing home who can’t travel anywhere.
People who get sick may seek some
one to blame, though, and sue. Those lawsuits may fail in the end, but small businesses that are forced to defend against frivolous claims could go broke in the process. That’s the danger.
The Pennsylvania Chamber of Business and Industry says employers already are being targeted with “unwarranted lawsuits” and that trial lawyers are advertising that they’re seeking cases.
There’s risk involved with doing anything these days where you will encounter other people — going to the store, going out to eat, going to the gym, going to school, attending a rally, participating in or attending a sporting event or even gathering with a small group of family and friends.
We must recognize that risk and recognize we bear responsibility for our actions.
If your favorite grocery store isn’t tough on the mask mandate, shop elsewhere. If a business is allowing
employees to work without masks, stop patronizing it. If a restaurant seems too crowded, get takeout or go elsewhere. If cases are rising in your school district, switch your child to virtual classes.
The one point that gives me pause is the safety of workplaces.
There are some employers who will eschew safety for the bottom line, even during a pandemic. Many people can’t quit their job if their employer ignores public health rules. They may be afraid to speak up for fear of being fired, and not every workforce has a union to fight on their behalf. If workers get sick, a liability shield could make it difficult for them to win a lawsuit.
Options include filing complaints with state or local health officials or workplace safety agencies such as the U.S. Occupational Safety and Health Administration and the Pennsylvania Department of Labor & Industry. That would create a paper trail about the situation which, if not corrected, could support any litigation filed in the hopes of meeting the bar of proving gross negligence.
While Wolf vetoed the legislation, he has provided immunity from lawsuits in limited fashion to specific industries, through executive orders
In November, Wolf shielded employees and owners of businesses and restaurants and employees of state and other government agencies from lawsuits related to enforcing the state’s mask requirements. The shield does not apply in cases of willful misconduct, gross negligence, recklessness or bad faith.
In May, Wolf shielded medical professionals from claims related to care for COVID-19.
That order covers professionals working in health care facilities, nursing homes, personal care homes and assisted living centers. The immunity covers only health care workers, not the facilities where the care is provided.
It does not cover medical care unrelated to the virus, or “acts or omissions that constitute a crime, gross negligence, or fraud, malice, or other willful misconduct.”
The issue of liability protections for businesses, schools and others also is being discussed at the national level. A bipartisan proposal for another coronavirus stimulus includes a temporary moratorium on some coronavirus-related lawsuits.
There was renewed optimism in Washington last week that an agreement could be reached on the stimulus. If so, then Wolf’s veto could become moot.
But until then, state lawmakers should continue to seek protections, and negotiate with the Wolf administration in the hopes of reaching a deal.
Morning Call columnist Paul Muschick can be reached at 484-2802909 or paul.muschick@mcall.com
This column was updated on Dec. 7 to note the limited liability protections for businesses and governments when enforcing the state’s mask requirements.