Liability Protections Under Consideration for Businesses Set to Reopen During the COVID-19 Pandemic

With the Senate set to return from recess on Monday, liability protections related to the COVID-19 pandemic are anticipated to be a hot button issue. While state and local governments are seeking financial aid from the federal government to assist in their battle against the COVID-19 pandemic, relief packages may also include protection from future legal actions against businesses.

As stay-at-home restrictions are beginning to be lifted, and businesses are starting to reopen, there are concerns that employees and customers will file suit against businesses, claiming that they were infected with COVID-19 as a result of the businesses’ failure to take appropriate measures to protect them once reopening occurs. This fear is likely in response to lawsuits that have already arisen against businesses related to COVID-19. For instance, earlier this month, a Celebrity Cruises crewmember, who contracted COVID-19 while working on a Celebrity ship, filed a proposed class action alleging that the cruise company failed to take adequate measures to protect the employees on its ships.[1] The crewmember filed the proposed class action in a Florida federal court, claiming that the cruise company failed to follow safety precautions after receiving notice that COVID-19 was or was likely present on the ships, such as permitting crewmembers to continue to eat in a buffet setting, and mandating crewmembers’ participation in shipboard drills.[2]

Similarly, Smithfield Foods Inc., one of the largest meat producers in the country, was recently sued in federal court in Missouri by one of its plant workers and a nonprofit organization that advocates for plant workers. The plaintiffs allege that at its plant in Milan, Missouri, Smithfield failed to provide workers with adequate protective gear, forced employees to work shoulder to shoulder, and did not give employees sufficient time to wash their hands, among other issues.[3]

With more claims of this nature certainly on the horizon, some argue that without liability protections, companies will be hesitant to reopen their businesses, worrying that similar suits will be made against them. For example, despite Georgia’s permission to reopen restaurants, Buttermilk Kitchen, located in Atlanta, will continue to only provide curbside pickup and will not reopen sit-in dining for the foreseeable future. The owner, fearful of putting employees, customers, and herself in danger, along with the fear of legal liability, shared, “[w]e don’t feel comfortable that this thing is behind us . . . We’re not going to do anything that puts (employees) in harm’s way. That could be a big liability if somebody gets sick and their family gets sick.”[4]

Proposed liability protections have been under consideration and implemented in various ways over the course of the pandemic. On March 17, 2020,[5] the Department of Health and Human Services issued a Declaration under the Public Readiness and Emergency Preparedness Act (“PREP Act”) to provide immunity from tort (except for willful misconduct) to certain individuals and entities for claims of loss caused by, arising out of, relating to, or resulting from, the manufacture, distribution, administration, or use of medical countermeasures in response to COVID-19. Then, on March 18, 2020, the President signed into law the Families First Coronavirus Response Act, (“Coronavirus Response Act”), which provides distributors and manufacturers of industrial-grade face masks with immunity from liability arising from the masks in connection with the COVID-19 pandemic. Further, on March 27, 2020 the federal government passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which grants protection for volunteer health care workers who provide services in response to the pandemic, with a few exceptions, such as harm caused by willful misconduct or gross negligence.

In addition to the federal government, individual states have also taken steps to provide liability protections, particularly in granting immunity to health care providers and facilities who have treated COVID-19 patients. For instance, earlier this month, New York Governor Andrew Cuomo signed the Emergency Disaster Treatment Protection Act (“the Act”) into law, which grants broad protection to hospitals, nursing homes, physicians, nurses and other health care providers; it shields health care providers against civil or criminal suits arising from the treatment of coronavirus patients if their treatment was affected by the pandemic. The Act also grants immunity for facility administrators, managers, supervisors and board members who will likely participate in creating policies regarding the care provided during the COVID-19 pandemic. Similarly, New Jersey Governor Phil Murphy signed legislation into law that shields health care providers and health care facilities from civil and criminal liability resulting from their treatment of COVID-19 patients.[6]

The most recent development in the liability protection discussion came from Republican Senate Majority Leader Mitch McConnell, who indicated this week that Republican party acceptance of a bill providing additional funding to states and municipalities will be conditional, insofar as, in his view, any bill must also provide liability shields for businesses from potential lawsuits filed by employees and customers infected by COVID-19. According to Senator McConnell, the Republicans plan to propose a broad liability shield that extends the protections already in place (for example the PREP Act and the CARES Act), to cover businesses that stayed open to assist in the relief from COVID-19, and those that decide to reopen once restrictions are lifted, in an effort to shield these businesses from lawsuits by employees or customers. Per Senator McConnell: “[b]efore we start sending additional money down to states and localities, I want to make sure that we protect the people we’ve already sent assistance to, who are going to be set up for an avalanche of lawsuits if we don’t act[7] . . . it’s not all about money. It’s also about protecting the brave people who took care of us during the pandemic and the brave people who will be trying to open up their businesses and get back to normal in the wake of all we’ve experienced.”[8] According to Senator McConnell, without these protections, the reopening of the country will not go as planned. He went on to say, “[w]e can say the country is opening up, but if people don’t come and businesses are afraid to open because of the lawyers that are lurking on the curbside outside their doors, we won’t have the kind of the reopening we want.”[9] Although there still remains questions regarding whether or not a proposal will successfully be passed, and the scope of the proposed shield (for example, whether it will be a complete safe harbor provision or limited to certain types of suits), this proposal may address the concerns relating to liability from COVID-19. Democrats are expected to challenge liability protections.

The easing of stay-at-home restrictions and subsequent re-opening of businesses have raised concerns about the potential liability of businesses that intend to reopen, along with businesses that have remained open to assist in the fight against COVID-19. While some claim that businesses need protection from potential lawsuits relating to COVID-19 to facilitate their reopening, the others fear that providing such broad protection will allow businesses to disregard safety guidelines without significant repercussions. Senator McConnell’s statements have sparked much controversy, and with states and municipalities beginning to reopen, potential immunity from liability will be a point of contention in the next round of negotiations for a relief package.

[1] See Nedeltcheva v. Celebrity Cruises, Inc., 1:20-cv-21569 (S.D. Fla. 2020).

[2] See id.

[3] The complaint does not seek money damages. Rather, the lawsuit seeks an injunction to force Smithfield to comply with guidance provided by the U.S. Centers for Disease Control and Prevention and public health officials. See Workers Sue Smithfield Foods, Allege Conditions Put Them At Risk For COVID-19, NPR NEWS (Apr. 24, 2020), https://www.npr.org/2020/04/24/844644200/workers-sue-smithfield-foods-allege-conditions-put-them-at-risk-for-covid-19.

[4] Paul Davidson & Nicholas Wu, Workers face “uphill battle” proving firms liable if they catch COVID-19 as economy reopens, USA TODAY (Apr. 28, 2020), https://www.usatoday.com/story/money/2020/04/28/coronavirus-can-you-sue-if-you-get-covid-19-work/3035422001/.

[5] The Declaration was issued on March 17, 2020, but the effective date was backdated to February 4, 2020.

[6] These acts, similar to the CARES Act and the PREP Act, do not protect willful, reckless, or criminal misconduct, or gross negligence.

[7] Guy Benson, Senate Majority Leader Mitch McConnell On Sexual Assault Allegations Against Biden vs Kavanaugh: Such Accusations Should Be “Dealt With Symmetrically” By The Media, FOX NEWS RADIO (Apr. 27, 2020), https://radio.foxnews.com/2020/04/27/senate-majority-leader-mitch-mcconnell-on-sexual-assault-allegations-against-biden-vs-kavanaugh-such-accusations-should-be-dealt-with-symmetrically-by-the-media/.

[8] Brian Kilmeade, Mitch McConnell Says He Will “Insist” On Including Liability Protection in New Coronavirus Legislation, FOX NEWS RADIO (Apr. 29, 2020), https://radio.foxnews.com/2020/04/29/mitch-mcconnell-says-he-will-insist-on-including-liability-protection-in-new-coronavirus-legislation/.

[9] Id.