As States Allow Businesses to Reopen, Who Is Liable When People Get Sick?

Mitch McConnell says there is a ‘red line on liability' as Congress prepares for next round of legislation.

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President Trump announced Tuesday that he would be signing an executive order to help Tyson Foods to “solve any liability problems where they have certain liability problems” after the board chairman John Tyson took out full-page ads in Sunday’s New York Times, Washington Post, and Arkansas Democrat-Gazette to warn that “[t]he food supply chain is breaking.”

Tyson expressed concern about plants being forced to close, workers getting sick, and disruptions to the supply chain. It isn’t the only company concerned about current or potential lawsuits as several states across the country start to allow businesses to reopen. As the president has encouraged some schools to open before the end of the school year, Francisco Negrón, chief legal officer for the National School Boards Association, has been ringing the alarm that “if schools reopen too quickly and end up spreading the coronavirus, schools could find be held legally liable.”

Even as stay-at-home orders are lifted, some businesses may be hesitant to reopen if faced with the possibility of litigation from employees or customers. The risk of a large adverse court judgment can be especially daunting as consumer demand is likely to be slow to return for many businesses as polls show that the vast majority of Americans are hesitant to return to their pre-pandemic routines. 

A team of lawyers from Alston & Bird LLP has created a helpful litigation roundup that includes summaries of new lawsuits around the country and notes that “[w]orkplace-related suits, including complaints accusing businesses of exposing workers or customers to COVID-19, are also continuing to increase with many more likely to follow.”

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  1. Brad

    Under what enumerated power could Congress limit ordinary tort liability in state courts? Even attaching something like that to related federal spending (like PPP loans) seems dubious.

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    Visibly

    I would make it very simple: all people forced to work through FDA should be considered part of the army, and with the same rights as military personnel and veterans: including access to health care.

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    Pat Riot

    The meatpackers Trump just forced to go to work will very likely get sick and some of them will likely die. The CDC created guidelines for these facilities and then those guidelines clearly got hacked up by the industry's lawyers before they were released to make sure that nothing the CDC said had to be followed.

    So who will shoulder the blame for the dead meatpackers? For the dead community members all of these meat packers spread the virus to? Why Trump of course. It looks like he's going to put that old quip about "shooting somebody on Fifth Avenue" to the test.

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  4. Don Harban

    I get it. Holding business liable for the consequences of this disease is a problem that would surely retard recovery. On the other hand, we have clearly seen instances of individuals intentionally and recklessly disregarding reasonable safety precautions and endangering others. There are even instances where safe practices have been flaunted to make political statements. I have worked in places that required individuals to sign absolute waivers of liability -- and I have been advised that no one (possibly save the government) can ultimately have their liability for negligent acts waived. Given the extent to which some individuals seem to have been inclined to flaunt even the most sensible safety suggestions for political reasons, I would not be comfortable with telling businesses that they could simply "have at it".

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    DougCLE

    I generally hate prescriptive solutions, because they tie the hands of innovators, but this might be a place where such is warranted. If the governments (state or federal) could define a minimum level of PPE and safe working practices for legal protection, that would give employers the confidence that they could reopen without spinning the Wheel Of Litigation. (Round and round it goes, and will you get sued? ....)

    Additionally - or alternatively - the same governments could define a *maximum* level of protection, and say that anyone who doesn’t feel safe below this level cannot be fired for not returning to work. That would put the burden of providing safe conditions back on employers who want to reopen, if they want their workers to come back any time soon.

    Both ideas have their advantages, and both have pitfalls. Of the two, I like the second way better, but think it doesn’t have a chance of passing (because of logistics, not ideologies). The first is probably the only way to protect businesses without resorting to blanket immunity.

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      Jake

      People assume that wearing gloves protects them from the virus, but they do not. The virus has been shown to survive in plastic for days. So when that worker at the grocery store who is wearing “PPE” says goodbye to the customer in front of you and starts handling your groceries with the same gloves, what do you think could happen?

      Our immune systems need exposure to microbes in order to strengthen. This whole idea of isolating ourselves from each other was to flatten the curve in order to not overwhelm our hospitals. It was never to stop the spread of the virus and keep ourselves from getting sick in the long term. I’m all for a blanket immunity for businesses because it’s not my employers responsibility to stop nature. As I said below, we don’t hold businesses responsible for transmission of other diseases like the flu. Why is this virus any different?

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      1. Ann G

        Glove wearing protects you from the virus if used properly. It is up to grocery customers to understand the limitations of protective gear, and that it's protecting the wearer, not the customer. The customer should wear their own gloves as well.

        So I believe we're at about 14% of virus antibodies worldwide, and that's if the testing is accurate, of which there is doubt. We are far, far away from the 60% needed for herd immunity. People are not going to be willing to get the virus in the numbers needed to move the immunity where it needs to be when the timeframe to vaccine immunity may not be that much longer. I haven't run into that many people willing to get the virus for the benefit of society. I really don't know where you get the idea that people are willing to get sick in the numbers needed for immunity without the vaccine.

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          Jake

          Folks tend to hang their hats on the concept of a vaccine, yet a vaccine for a Coronavirus has never successfully been developed. I hope we get one for this virus, but I’m not planning on one, nor can anyone plan on everyone submitting to a vaccine.

          I think we’re getting more and more data about this virus and, as testing increases, we’ll be able to get a better handle on its transmission. I think that time will tell if this virus is actually as dangerous as it’s current case-mortality rate would imply. There are a ton of factors involved and I don’t think that there is just a single choice to make given the data we have now, as much as certain governors want to claim otherwise.

          The goal should be vastly expanded testing. They need to stop restricting who should be tested and just test everyone. Then isolate the sick and let the healthy go about their lives. That is a quarantine.

          I, for one, will be the first back at restaurants for date nights with my wife for nice quiet breaks from our kids.

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          1. Ann G

            I agree on both counts that it's possible that a vaccine may never be available and that we need to test and trace everyone. But since there is so much we don't know yet, we have to be cautious in order to protect the most people. We are doing very poorly using the technology that's available, so in order to protect people, we have to act prophylactically with protective gear and behaviors. It isn't acceptable to say that people should die for the cause so others can be safe, which is what it often sounds like when people suggest letting the virus run its course.

            If we never get a vaccine, I think we'll see more people avoiding public spaces. This may occur anyway since it's only a matter of time before the next health threat.

            If the virus mutates to a less vicious form or goes dormant and this all goes away, well good for us, but the focus for now ought to be in how to save the most lives. We are not doing well at that and it should be unacceptable.

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    Jake

    The notion of suing a business because you caught a virus sickens me. I didn’t sue anyone last year when I caught the flu. Did I miss out on easy money?? There are zero people and businesses that can stop the spread of germs. Even hospitals struggle with infections.

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      Devin H

      While I agree with you to a certain extent, we have *got* to stop comparing this to the flu. The lack of vaccines, herd immunity, and just basic knowledge of this disease make the situation much, much different. Would you feel the same way if a business was responsible for infecting customers with Ebola?

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        Jake

        I’m not comparing the virus to the flu. I’m comparing it to another disease. That I named it is not relevant. How does a business “infect people with Ebola”? What does that mean?

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          Devin H

          Poor choice of wording on my part. Does "Knowing with a potential degree of certainty that by keeping people in close contact by a work mandate, they could be facilitating the spread of a communicable, deadly disease" work?

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            Jake

            And what legislation could be passed that had no unintended consequences in either direction that would “ensure everyone’s health”? I put that in quotes because that seems to be the direction everyone is heading with all this and I don’t agree with it. Do I expect employers to clean their facilities? Yes. They do that already. Do I expect them to disinfect every possible surface I could come in contact with? No I don’t. Because the moment someone else uses that surface after it’s been cleaned, it’s now no longer clean. Do I expect businesses to protect me from coworker sneezes? Again, no.

            How does one even begin to write legislation that makes sense in this area? Office environments are fundamentally different from warehouse environments. How can you cover both (or all the other environments on top of those).

            All that being said, I am still of the opinion that our long term goal here isn’t to not contract the disease, but rather spread infections over time to avoid overwhelming our hospitals. Unless you’re wearing full protective equipment that they have in hospitals, “PPE” will be ineffective. Masks are mandated because some people don’t know how to cough or sneeze. Those people are also probably shunning the masks anyways. If I pick up a tool in a warehouse that an infected coworker just set down, then I run my eye to remove some dust, a mask or gloves won’t do me any good. Can I sue my employer? My coworker? That sounds like madness and hysteria to me.

            As far as the term “work mandate” goes, I have a knee-jerk reaction to that. If I have a job, I’m expected to show up and do it. That’s part of life. So is the transmission of diseases.

            We shutdown to flatten the curve, not prevent infection and exposure in the long-term. That’s simply not possible. Any legislation that attempts to draw lines on liable vs not liable is going to fail and is pretending that we can legislate virus transmission. This isn’t something a law can control.

            Thanks for the discussion! I’m enjoying being able to talk to someone outside my house about my thoughts :)

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        Bill Nelson

        The business doesn’t do this, the virus does. Legal liability cannot, and should not, cover everything.

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          Devin H

          Again, I agree to a certain extent. Do employees of those businesses have a right to a safe workplace, though? If I have a tree with a dying branch hanging over my neighbor's house and it snaps and puts a hole in their roof, I can't say "I didn't do this, the tree did" and get away without being liable.

          *I should have also included employees along with customers in my above post*

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    Moshow

    This is another situation where it sounds like an amazing, thoughtful act to protect the health care workers and we should be protecting the health care industry in a time like this.

    I’m nervous with what is behind the curtain. I just don’t see this going through A corporate backed senate without complete hold harmless liability clauses in place for the fat cat corporation owners that are going to force their workers back to work not caring if they are sick or if they get sick. Those owners will not be going into the office. They will be working from home. Do as I say not as I do.

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      Bill Nelson

      Fat cat owners? That’s me. Oh, and you also.

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