States were braced for flurry of COVID lawsuits
In a legislative flurry, 30 states instituted liability protections in late 2020 and early 2021 designed to protect businesses from COVID-19 lawsuits, out of fear that companies would be sued for exposing workers, clients or vendors to the swiftly spreading, deadly disease. Those lawsuits haven’t materialized. Proponents of the new laws say that’s because the statutes have scared off potential litigation. But critics say the actions have created a solution in search of a problem, because most employees who sue do so under existing workplace safety regulations, such as those enforced by the federal Occupational Safety and Health Administration or under union rules.
And because of the nature of COVID-19, pinpointing and proving the exact location where someone got the virus is difficult. Neither OSHA nor most states issued COVID-19 rules for workplaces in the past year, though a few liberal-leaning states did.
The dearth of litigation could stem from all those things.
“The liability shield laws themselves have discouraged plaintiffs’ lawyers from trying to bring suits,” said Torsten Kracht, an attorney with national law firm Hunton Andrews Kurth.
“In cases where you have employees who got sick on the job, their recourse is really through workers’ comp claims,” he added. “I think that may be another reason.”
Hunton Andrews Kurth’s COVID-19 “complaint tracker” shows about 200 civil suits have been filed nationwide by workers in 2021 and just 52 have been filed by nonemployees who allege they got COVID-19 in a place of business. The tracker showed 1,700 coronavirus-related civil rights cases and 771 COVID-19 consumer cases over the same time period.
Kracht said isolating where someone contracted COVID-19 is easy only if those people were in a controlled environment such as a cruise ship at sea for more than 14 days.
“But if I’m a person out in the world – shopping, eating, etc. – it’s pretty hard to prove where I got it.”
He knew of no cases that had made it all the way through the legal process to a conclusion either way.
Many of the state laws were based on model legislation distributed by the American Legislative Exchange Council, a conservative group known as ALEC.
The ALEC model bill – titled the “Liability Protection for Employers in a Declared Disaster or Public Emergency Act” – would allow proprietors or businesses to operate during a declared disaster or public emergency without the threat of civil litigation if they complied with or made a “good faith effort” to comply with applicable federal, state or local regulations, orders or laws, ALEC spokesperson Alexis Jarrett, said in an email.
The new liability protection laws vary, but most of them seek to protect all or specific kinds of businesses from lawsuits that attempt to establish culpability. Exceptions are usually made for negligence, willful misconduct or a provable failure to follow public health orders.
Many governors, especially Republicans in the 23 states where the GOP holds both houses of the legislature and the governorship, championed the liability limitations laws. An example was Gov. Mike Parson of Missouri, who used the Smokin’ Guns BBQ restaurant in north Kansas City as a backdrop this month to sign his state’s version of the law.
The anti-litigation push was driven by business groups such as state chambers of commerce and other probusiness organizations. In the panic that accompanied the arrival of COVID-19 in the United States early last year, businesses were trying to decide whether to close altogether, or open under ever-changing guidelines and risk exposure to lawsuits. They pressured lawmakers to act.
Momentum for the liability shields picked up throughout the spring and early summer, said Ashley Cuttino, a labor and employment lawyer at the Ogletree Deakins firm in Greenville, South Carolina.