USA TODAY International Edition
Lawsuit immunity needs public health guidelines
Amid economic ruin inflicted by a pandemic, businessman Kevin Smartt said he has tried to do the right thing. “We have chosen to put people first over economics,” the CEO of Kwik Chek convenience stores in Texas told the Senate Judiciary Committee last week.
Smartt has kept all 600 employees working even as fuel sales fell 40% and in- stores sales 17%. Workers wear masks and gloves, and they disinfect counters every several minutes. Hand sanitizers are out, and tape marks are on the floor to keep customers apart.
Federal, state and local health guidelines are confusing and even conflicting, Smartt said, yet he has worked hard to comply, and the last thing he needs is to worry about getting sued: “We should not be punished with unfair lawsuits just because we kept our doors open for the American public.”
He has a point, as businesses across the nation begin to reopen amid the worst economic crisis since the Great Depression. It’s why the Senate is debating liability protection for businesses, and why Majority Leader Mitch McConnell said the failure to include it in any new stimulus bill would be a red line GOP senators won’t cross. McConnell last week explained that what’s needed is “a legal safe harbor for businesses, nonprofits, governments, workers and schools who are following public health guidelines to the best of their ability.”
Fair enough. But what exactly are those public health guidelines?
Companies are still waiting. Most states don’t have the scientific wherewithal to create business practices for a deadly illness. It calls for the kind of expertise within the U. S. Centers for Disease Control and Prevention, and the kind of workplace regulation found at the federal Occupational Safety and Health Administration.
But OSHA has punted, leaving safety options to businesses. CDC scientists, meanwhile, drafted precisely what’s needed — detailed steps on how best to protect students, travelers, employees and worshipers. But the White House has shelved it and directed the CDC to issue a vague checklist.
The Trump administration has joined McConnell in calling for liability protection. But the president can’t have it both ways. He can’t urge Congress to protect companies from coronavirus claims if they follow public health guidelines, without providing those companies public health guidelines.
Sen. Lindsey Graham, R- S. C., has it right. “The sooner we can come up with a regulatory, OSHA- driven process to allow ... businesses ( guidance), the better off we’ll be,” Graham said last week.
Only a few dozen COVID- 19 lawsuits have been filed. But the number could rise, particularly if the virus returns with a vengeance in the fall. Temporary liability protection for businesses trying to do the right thing as they’re being battered by a virus- driven recession would be fair.
But the federal government must first step up to produce a science- based road map for companies on how best to keep customers and employees safe.