Fortunately, there is room for a compromise in principle. Corporations don’t need blanket immunity to coronavirus lawsuits, and Congress shouldn’t give it to them. However, a tighter division of liability for companies that are actively involved in tracing would make sense – for both business and public health. The House and Senate can’t agree on much these days, but they should be able to agree.
The “avalanche” of Covid-19 lawsuits that McConnell and his allies predicted in April has not yet arrived. According to the law firm Hunton Andrews Kurth, consumers and employees across the country have filed fewer than 100 personal and death lawsuits resulting from exposure to Covid-19 in the workplace or in companies.
Still, McConnell says that including liability reform in the next round of pandemic relief is a “red line” without which Republicans would not pass the package. According to the plan, released Monday, a plaintiff suing a company for injuries resulting from coronavirus exposure would have to provide “clear and convincing evidence” to demonstrate that their injuries were caused by gross negligence on the part of the defendant. Even then, the defendant could evade liability by following government guidelines.
All of these provisions mark severe violations of the existing tort law. Typically, a plaintiff just needs to demonstrate that his or her injuries are “most likely” due to the defendant’s “negligence” (not “gross negligence”). And compliance by a defendant with state guidelines does not confer immunity under other circumstances.
Democratic leaders have ridiculed McConnell’s ideas about liability. When asked about the possibility of a protective shield in a draft Covid-19 bill earlier this month, House spokeswoman Nancy Pelosi (D-Calif.) Replied: “I mean, that’s just – no.”
However, other legislators have suggested an openness to compromise. “I’m not going to give anyone a blank check and blanket immunity,” said Senator Doug Jones (D-Ala.). However, Jones, who faces a fierce re-election campaign in November, hopes his colleagues can strike a “fair balance” between protecting businesses and protecting public health.
Jones is right to seek reform opportunities. There are real reasons to fear that the current tort liability rules could interfere with contact tracing efforts and, as a result, contribute to the spread of the virus. However, there are workable solutions with the potential to gain bipartisan support.
To understand how the existing regime is causing potential problems, consider this scenario: a hairdresser calls in sick with symptoms of Covid-19 and soon tests positive for the virus. Her salon was able to use its booking engine to find phone numbers or email addresses for dozens of customers the barber has served in the past few days. However, the salon owner fears that it could open the door to lawsuits from clients who fall ill.
Hopefully in this scenario the salon owner would accept the liability risk and do the right thing and immediately notify her clients that they may have been exposed. But we write laws for real people in our own flawed world, not for angels in an ideal one. Business owners across the country are rightly or wrongly concerned that even if they have taken reasonable precautions to reduce the risk of transmission, they could face overwhelming tort claims. And if the salon owner hesitates to pick up the phone because she has concerns about filing a lawsuit, customers may not find out about their exposure until they have passed the virus on to others.
This is the pinch our current regime is creating. Before someone is injured, the threat of tort liability encourages companies to take safety precautions to avoid subsequent lawsuits. But after a violation, tort law can create perverse incentives. Companies reasonably fear that if they proactively alert their customers to potential risks, they will invite lawsuits. Tort liability, which can improve public safety in other contexts, can now become an obstacle.
The problem doesn’t just affect covid-19. Fears of litigation can deter manufacturers from uncovering product defects and physicians from informing patients about medical errors. However, the coronavirus context poses particular challenges. There is a need for speed here: we want the hypothetical salon owner – and actual business owners across the country – to inform clients as soon as possible of possible risks so that these clients can be tested and self-isolated. This is less likely if business owners believe contacting them increases the risk of costly or even damning lawsuits.
This concern does not justify the kind of comprehensive safeguards McConnell has proposed. However, this suggests that a tight solution is desirable: a safe haven from tort for companies that have customers within 24 hours of receiving notification that one of their employees or another customer had Covid-19 on their premises inform about potential risks. When a company learns that it may be a transfer location, we want customers’ phones and inboxes to light up. The last thing we should want is liability fears getting in the way.
While there is a real cost to this proposal, we believe the benefits outweigh all of them.
First, the proposal would prevent some customers from claiming damages if infected due to a company’s negligence. But to be honest, it will be very difficult for customers to win lawsuits that arise from Covid-19 engagements anyway. A customer who claims to have been exposed to the virus in a certain company would have to prove that he was “most likely” to contract covid-19 there, and not from a family member, a stranger or another company. This will be difficult – unless, of course, the company tells customers where they’ve likely been exposed.
Another potential disadvantage is that a safe haven could weaken the incentives for companies to take security precautions. Businesses don’t want their premises to become sources of infection, however: a reputation as a coronavirus hotspot likely isn’t good for your Yelp rating. State and local authorities can mitigate this risk through strict enforcement of mask regulations, social distancing protocols, and other public health measures.
To ensure that a safe haven for bad actors does not become a no-prison card, it should not apply to claims of gross negligence or recklessness. For example, a salon or restaurant where its employees do not have to wear masks should still be held liable. And the safe haven shouldn’t apply unless the company notifies the customer of the potential hazard within 24 hours of becoming aware – through a live phone call, voicemail, or email. (We would also suggest a 14-day outer limit from the time of exposure, after which the safe haven would no longer be available, even if the company first learns it is a possible transmission node.)
Of course, many companies don’t have contact information for their customers. In this case, they cannot use the safe harbor. However, the rule would encourage companies to maintain up-to-date phone and email information for their customers, which also helps contact tracers in their efforts to track down people who have been exposed to the virus.
Our suggestion makes it more likely that customers will learn about exposures – and quickly. This is a simple, sensible approach. It’s a deal that should be easy to strike even for lawmakers in dispute. The biggest winner would be public health.