By Christian Britschgi | Reason
Negotiations over yet another coronavirus relief bill are picking up again. With them comes the possibility that Congress will pass legislation shielding businesses from civil lawsuits alleging they exposed consumers or workers to COVID-19.
Liability protections have long been a demand of the business community, which has said that, absent congressional action, a “litigation wave” could delay economic recovery.
Consumer advocates and Democrats are much more skeptical of liability protections, arguing that they would effectively allow businesses to get away with endangering the public.
“By law, businesses owe only limited duties to customers. Businesses must maintain their premises in reasonably safe condition. They must make reasonable efforts to discover dangerous conditions. If they do discover dangerous conditions, they must remediate them or at warn customers sufficiently. Importantly, businesses are not required to screen customers or employees coming onto the premises. Unless a business knows that someone entering the property poses a specific risk of harm to others, then the business owes no heightened duty. If customers or employees entering a business bring a danger with them, the business has no duty to make it safe or warn customers until and unless the business actually knows about the specific danger.
Businesses should remember that they also owe a duty to follow through on their own promises. The pandemic presents opportunities for businesses to distinguish themselves by voluntarily undertaking additional duties to their customers. However, businesses should be careful to avoid false claims. When a business undertakes a duty not imposed by law, the business creates a higher duty for itself. For example, there is no requirement that businesses screen customers’ temperatures before allowing customers to enter the business. But if a business advertised that it was engaged in temperature screening, then the business could be liable for temperature screening inaccurately.
The law is always evolving. However, it seems likely plaintiffs will face an uphill battle to win claims against most businesses operating as normal. So long as there is community spread of the virus, it will be difficult for plaintiffs to prove that they caught the virus from specific encounters. Moreover, businesses are not required to insure their customers’ health. If a customer gets sick at a business, that alone does not suggest that the business is liable.
Workers who believe they contracted COVID-19 during work may be eligible to file claims for workers compensation. The viability of these claims remains uncertain without official guidance.
Businesses may have insurance that will defend against COVID-related claims and pay COVID-related judgments. Businesses should audit their policies to ensure they have the coverage they need.”Logan Elia, Rose Law Group Partner