The Oklahoman

States were braced for flurry of COVID lawsuits

- Elaine S. Povich

In a legislativ­e flurry, 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 difficult. 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 plaintiffs’ lawyers from trying to bring suits,” said Torsten Kracht, an attorney with national law firm 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 filed nationwide by workers in 2021 and just 52 have been filed 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 effort” 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 specific 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 firm in Greenville, South Carolina.

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