As states like Washington slowly emerge from stay-home orders, most discussion has rightly focused on physical safeguards for workers, customers and broader communities from COVID-19.
But responsible loosening of the public health-related shutdown must also involve setting reasonable limits to liability for companies that have taken recommended precautions and acted in good faith.
No one can guarantee that coronavirus transmissions won’t increase — or even spike — with the slow resumption of commercial activity. Even a cautious reopening involves a certain degree of risk. Employers who follow all guidelines to protect employees and the public should have legal assurance that they will not be unreasonably penalized if that happens, or for making necessary changes to business operations to safeguard public health.
Senate Majority Leader Mitch McConnell, R-Ky., has vowed that no further coronavirus relief bill will see the light of day in his chamber unless it includes liability shields for businesses and employers. House Democrats, including Speaker Nancy Pelosi, D-Calif., have expressed little interest, saying the focus should be on workers’ rights.
With congressional talks reportedly stalled, business owners are put in a difficult position.
Clearly, health and safety of workers, patients and the public must be a top priority, as is a recognition that these extraordinary times place extraordinary burdens on employers and commercial enterprises. Liability shields should not protect bad actors who knowingly violate state or federal guidelines, such as the Colorado restaurant which reportedly allowed customers to sit elbow-to-elbow on Mother’s Day. Rather, they should protect those who act in good faith to protect customers, vendors and employees from harm when much is still unknown.
Beyond the obvious question of safe workplace requirements, several categories of potential liability have been flagged by the U.S. Chamber of Commerce. It warns employers could face potential claims of discrimination or violation of health privacy law when reopen plans involve testing, temperature checks or special precautions for at-risk employees. Businesses that extend public-health precautions and provide protective equipment to independent contractors risk violating contracting agreements. Manufacturers that step up to produce essential products and equipment to test, treat and protect against the virus face potential product liability claims.
There is the thorny issue of medical liability for health-care facilities and providers, and lesser-known regulatory requirements, such as limitations on customer communications.
Make no mistake, employers have a strong responsibility to protect their workers and customers. But liability should be limited if they take reasonable precautions and are transparent about potential risks.