Businesses are in a tough position when it comes to the right time and appropriate way to operate during the COVID-19 pandemic. One of the ideas proposed to make things easier for business owners to open up shop is providing “blanket immunity.”
Immunity is the exemption from penalties or payments granted by authorities. While the details vary depending on circumstance, as long as the business owner follows governmental safety guidelines issued by OSHA and the CDC, they would not be subject to lawsuits from consumers or employers who may become sick from the novel coronavirus.
While this sounds like a simple solution to one of the problems small business owners deal with, the reality is blanket immunity disincentivize business owners from doing everything they can to protect their customers and employees. It is also unnecessary to consider the very high standard that needs to be met for a potential COVID-19 infection case. Giving blanket immunity is like using a sledgehammer to crack a nut.
Workers’ compensation vs. Tort claims
Without blanket immunity, employees would most likely be restricted from seeking compensation under the workers’ compensation system. When a workers’ compensation claim is available, it is common for courts to bar or severely limit any tort claims involving workplace exposure to widespread, communicable diseases such as methicillin-resistant Staphylococcus aureus (MRSA), hepatitis, HIV and dysentery.
Given COVID-19’s ubiquity in a myriad of spaces, the disease may be treated by courts as an “ordinary disease of life,” similar to MRSA (otherwise known as “staph”). However, even in places where workers’ compensation is not available for COVID-19 infections, such as in Washington State, the availability of tort remedies is not guaranteed and will be determined by the law of the state in question.
Even though workers’ compensation laws vary from state to state, the basic claim would remain the same – that employers failed to protect workers from coronavirus exposure. If an employee is infected with COVID-19, employers may face allegations that they:
- they failed to cleanse and sterilize physical spaces;
- didn’t implement or enforce social distancing guidelines;
- failed to provide necessary personal protective equipment;
- ignored reports that employees were experiencing symptoms of COVID-19; or
- continued operations after learning that employees were exposed to the novel coronavirus in the workplace.
Following safety guidelines
Best practices would dictate that employers strictly adhere to conditions imposed by state and local emergency orders to establish that they met their duty to protect workers. On the surface, this appears to be a commonsense standard and is often included in descriptions by legislators of what would be required of employers who can successfully use blanket immunity as a shield from lawsuits.
These legislators point out that blanket immunity laws would not shield examples of gross negligence. However, given the current intersection of federal, state, and local guidelines, the reality is more complicated and could lead to its own set of excessive litigation. The arguments will center around which standards should have been followed. At a minimum, the guidelines from different authorities result in a confusing web of regulations. At its worst, in some localities, the guidelines conflict with each other.[1]
Alternatively, if blanket immunity is conferred by federal legislation and depends only on the adherence to national guidelines, this would upend public health flexibility in each locality. Even the U.S. Chamber of Commerce has said that a one-size-fits-all approach to safety measures is impossible for every workplace in America.[2] Critics of blanket immunity also point out any guidelines put out by the CDC or OSHA may not actually be based on science [3] or be appropriately concerned with the health and safety of workers.[4]
Providing blanket immunity under these circumstances may create a race-to-the-bottom for workplace standards.[5] Safe harbors may result in blanket immunity being conferred on businesses that follow only the vague suggestions currently in place or on companies who say they have “tried” to comply without any meaningful actions designed to achieve the desired effect of a safe workplace.[6]
In comparison, under current law, the focus would be on business owners taking reasonable steps and exercising reasonable care to protect workplaces. Polling has shown that the fear that companies will take fewer precautions under a blanket immunity system if they cannot be held accountable and more people will get sick is real for many Americans.[7]
Establishing a Causal Connection
Putting the employer’s culpability aside, employees face an additional burden of establishing causation in these kinds of cases. Looking again at the case law that has developed around MRSA can give us some idea of what kind of results we will see with COVID-19 cases.
MRSA refers to a specific type of bacteria that is resistant to many types of antibiotics. It began appearing in U.S. healthcare environments in 1961. By the 1980s, it was showing up outside of the healthcare industry. People can become infected with MRSA through skin-to-skin contact as well as through sharing items that have touched an infected site.
The extent of an MRSA infection depends significantly on the individual; people with MRSA infections are generally asymptomatic, but some may develop pneumonia or sepsis.[8] While certain workplaces present a higher risk of MRSA infection, such as child care facilities, healthcare facilities, and veterinary offices, the disease is common enough that any location where people come into contact with each other is a potential place for infection.
With workers’ compensation claims arising out of MRSA infections, showing that an infection occurred while on the job can be very difficult. In Beck v. Pride Int’ l, Inc., 2008 WL 4681978 (S.D. Tex. 2008), a worker and his family lost a summary judgment motion because they did not provide an expert that could testify as to the causation of their MRSA infection. Without the expert testimony and several possible sources of the original worker’s MRSA infection, the court found no genuine issue of material fact on the causation element.
In another case, Frederick v. Intercontinental Hotels Group Resources, Inc., 2011 WL 666843 (E.D. La. 2011), a guest at a hotel was unable to meet the burden of proof necessary to show that a hotel’s actions were the cause of his MRSA infection. The hotel defendant was able to produce an expert that went into great detail about the numerous way’s MRSA is contracted and denied any causal connection between the hotel’s actions and the plaintiff’s infection. Furthermore, the plaintiff’s evidence was considered insufficient by the court to contradict the expert testimony.
Just as with MRSA, it will be almost impossible to determine the exact moment an individual becomes infected and whether it was in the course and scope of employment.[9] In addition, proving the necessary causal connection between exposure and the resulting illness to support a finding of compensability for family members who contract coronavirus from an infected worker maybe even more challenging.
Because coronavirus is contracted in countless places and the high bar, we set for establishing a nexus between exposure and illness, we may see that the only claims that result in compensation will be limited to healthcare workers who were specifically exposed to the virus.
Consumer claims
While the bulk of this discussion has focused on workplace-related lawsuits, the challenges for business owners to protect customers from infection are similar and arguments against blanket immunity rest on many of the same premises.
Patrons to a business can pursue a variety of common law tort and statutory claims against a business. However, blanket immunity should not be hastily awarded to companies simply because their unsafe practices may lead to a lawsuit.
Plaintiffs would have to show that they contracted COVID-19 again, but they would have to prove that they acquired the virus within a specific commercial establishment and that the business owner breached a duty of care.
The causal connection may be more challenging to demonstrate in the consumer-business setting since interactions are generally brief and limited in scope. The law already includes several elements that provide reasonable causation defenses and puts the plaintiff’s burden to prove that the business owner should be held liable.
Circumventing this fair and balanced system will lead to individuals deprived of their right to seek compensation when they are infected in the course of visiting and patronizing businesses where they have a reasonable expectation for the company to follow health and safety guidelines.
We should not support a measure that sends the message that we want to protect profits without providing for the liabilities that may arise from individual business owners cutting corners and not doing what they can to protect the very people they are encouraged to spend money at their establishments.
Wave of Cases
Proponents of blanket immunity claim that there will be an excessive number of lawsuits filed without it. However, it is incredibly challenging to prove that a victim was exposed and got sick in one specific place. Critics of blanket immunity, including the President of the American Association for Justice, Bruce Stern, know that there will not be a wave of litigation in the future.[10]
Current numbers also show that any assertion that a flood of lawsuits is coming is just a fear tactic being used by blanket immunity supporters. Earlier in May, the chief policy officer at the U.S. Chamber of Commerce, Neil Bradley, revealed they were already tracking over 300 different lawsuits that were filed since states began shutting down.[11] As of June 17, a little over 2800 COVID-19-related complaints have been filed nationwide and only a small fraction of them involve labor and employment.[12]
Blanket Immunity is unnecessary
In summary, the current system of laws offers more than enough protection to business owners while also providing compensation to individuals who can provide the evidence necessary to file a workers’ compensation or tort claim.
There is no need to create a blanket immunity system that could result in more dangerous workplaces or confusion about what business owners should do to protect themselves from lawsuits. Blanket immunity is both unnecessary and potentially harmful to businesses.
[1] https://www.usatoday.com/story/opinion/todaysdebate/2020/05/18/coronavirus-lawsuits-immunity-requires-public-health-guidelines-editorials-debates/5199504002/
[2]https://centerjd.org/content/fact-sheet-unsafe-harbors-problem-unsafe-immunity-proposals
[3]https://www.usatoday.com/story/opinion/todaysdebate/2020/05/18/coronavirus-lawsuits-immunity-requires-public-health-guidelines-editorials-debates/5199504002/
[4]https://thehill.com/business-a-lobbying/498877-unions-worry-congress-is-one-step-closer-to-a-liability-shield
[5]https://www.law360.com/articles/1272393/congress-set-for-fight-over-covid-19-business-immunity
[6]https://centerjd.org/content/fact-sheet-unsafe-harbors-problem-unsafe-immunity-proposals
[7]https://www.justice.org/sites/default/files/Hart%20Research%20Poll%20on%20Business%20Liability%20Immunity.pdf
[8]https://www.cdc.gov/mrsa/community/index.html
[9]https://www.irmi.com/articles/expert-commentary/coronavirus-covid-19-is-it-compensable
[10]https://www.usatoday.com/story/opinion/todaysdebate/2020/05/18/coronavirus-blanket-legal-immunity-prolong-pandemic-editorials-debates/5218020002/
[11]https://www.nydailynews.com/opinion/ny-oped-devious-covid-19-liability-push-20200524-gvt6hivuwbhw7aextk3kw3ssdq-story.html
[12]https://www.huntonak.com/en/covid-19-tracker.html?eType=EmailBlastContent&eId=cfda621d-c7ab-4096-b3b9-c27ae02396c9
About the Author
Graham Sutliff is the co-founder of Sutliff & Stout, Injury & Accident Law Firm. Graham is Board Certified in Personal Injury Trial Law, and he has been actively trying personal injury cases for over fifteen years.
Interesting Related Article: “COVID-19 is Putting Businesses at Risk of more Workers’ Compensation Claims“