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States consider laws to stop businesses from being sued if employees or customers contract coronavirus

Consumer groups oppose similar measures at the federal level

By: Jamie Grey & Lee Zurik

Originally Published: May 11, 2020

(InvestigateTV) – With businesses beginning to reopen around the country, some owners are worried they are opening themselves up to lawsuits if an employee or customer is infected with the coronavirus.

Now, some states are looking at a special legal immunity to protect restaurants, stores and other businesses from being sued, particularly if someone contracts the coronavirus during a state of emergency.

In Birmingham, Alabama, a restaurant and bar owner said liability is among the concerns she has with reopening. At this point, her business is only offering catering services.

“We always say we are not thinking if we will get sued but when we get sued. You always want to decrease the liability you are carrying,” said Laura Newman, the owner of Queen’s Park.

It’s a legitimate worry, according to business attorney Jim Garner in Louisiana, which also is considering such a law.

“Right now it’s a main and real concern for all businesses, not only for employees but to invitees to the premises,” Garner said.

Employees and families of employees who have died from COVID-19 have sued cruise lines, meat packing plants and Walmart. In Alabama, owners of a yoga studio are suing their landlord to get out of their lease, with potential exposure as one of the factors, according to the Alabama Media Group.

State Senator Arthur Orr, a Republican from Decatur, is sponsoring a bill that would protect Alabama business owners from civil litigation.

The bill states giving businesses immunity that operate with reasonable safety protections “will help encourage businesses to remain open and reopen.”

Garner said laws currently on the books help protect emergency responders from situations where someone may die from care decisions, but the statutes do not offer protection for businesses.

In Utah, the governor last week signed a bill to protect business owners.

State Senator Kirk Cullimore, the bill’s Republican sponsor and an attorney, said during debate the bill was necessary to help businesses open without fear of crippling legal action. Lawsuits, he said, can unravel businesses because owners have to pay to fight the legal challenge, even if they are found to be without fault.

“Just the very nature of bringing a claim can cause a business a lot of harm because they often times make insurance claims or end up settling these claims,” said Cullimore during an April special session.

Cullimore also said this pandemic is different than liability associated with other contagious illnesses such as the flu – partially because health authorities actively trace cases back to specific likely sites of infection. That in itself may result in another issue.

“There is also the thought that we are going to want businesses to participate in potential tracking and reporting of COVID-19 cases and if they are scared about liability and litigation, we may not get that participation to help curb this pandemic,” Cullimore said.

Another difference with COVID-19, according to Garner, is the legal threats related to exposure are far different than those related to other illnesses.

“It’s the severity of the disease that we’ve seen from all the unfortunate deaths… and the ease of transmission as compared to the flu or just normal, common everyday cold,” Garner said.

The Utah law and similar proposals in other states include language that would allow lawsuits where a business is reckless or intentionally harms people – which Garner said is the right balance.

“Good public policy would be we want to ease everyone back into the economy, so we want to have some immunity for people who are good and try real hard. But if you are a bad actor and you are intentional or wanton or arbitrary or capricious, we’re not going to protect you,” Garner said.

This type of legislation is not without concern. Some opponents argue it could give businesses the idea that they can operate without any protection or at the very least, lower their standards.

“I have talked to business owners and constituents too, and they’re worried at the same time because what we’re doing here if we do this is lowering the bar for some people. Not all responsible owners of premises… it could lower the bar that we’re not going to get sued for this, so that worries me,” said Utah state Senator Jani Iwamoto, a Democrat, during the April special session debate.

As some business groups have lobbied Congress to pass a similar federal measure, consumer advocacy groups oppose such a measure.

For example, the Consumer Federation of America, Consumer Reports and others last week urged federal lawmakers to dismiss the idea.

“Such proposals, if enacted, would undermine consumer and worker protections, excuse negligent conduct, and show unwarranted disrespect for state law, including centuries-old state-law remedies,” wrote the organization in a May 6 letter.

Ohio and Louisiana are also considering bills to limit liability for business owners. One of the bills in Louisiana specifically addresses food providers and would provide immunity for all food service businesses and organizations from restaurants to schools, farmers to processors.

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