Biz Groups Urge Congress To Enact COVID-19 Liability Shield

By Y. Peter Kang
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Law360 (May 21, 2020, 5:15 PM EDT) -- The U.S. Chamber of Commerce and dozens of state and local business groups are urging Congress to enact liability shields for businesses that are reopening amid the COVID-19 pandemic.

The pro-business lobby said in a letter Wednesday that U.S. lawmakers need to pass temporary legislation that would provide reopening businesses a "safe harbor from unwarranted lawsuits" filed in connection with employee and consumer coronavirus infections, in order to help buoy an economy wracked by state lockdowns.

"This is an unprecedented situation and despite employers' best efforts to comply with public health guidance, many are concerned that they will be forced to defend themselves against a wave of lawsuits," the groups said in the letter. "Their concern is driven by the fact that each day brings news of more lawsuits that have already been filed."

The chamber and 51 state and local groups, which included pro-business lobbying organizations in California, Florida, New York and Texas, said employers that are following public health guidelines should be protected from lawsuits while "truly bad actors" should still be held accountable.

In addition to businesses, manufacturers and health care providers that follow public health guidelines, the groups asked Congress to shield publicly traded companies that could face investor lawsuits connected to drops in stock prices that result from the global pandemic and "under the spurious assertion that management failed to warn investors."

The letter was sent as Congress mulls potential legislation that would be bundled with the next COVID-19 relief package. Senate Majority Leader Mitch McConnell, R-Ky., has said a business liability shield is a "red line" issue and a top Republican priority.

During a May 12 Senate Judiciary Committee meeting, senators on both sides of the aisle expressed concerns that there is no de facto standard of care since safety guidelines issued by the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration are merely recommendations that are not enforceable.

"The sooner we can come up with a regulatory, OSHA-driven process to allow big, small and intermediate businesses [guidance], the better off we'll be," said Committee Chairman Lindsey Graham, R-S.C., after witnesses representing employers and employees said they would all welcome clear, enforceable and industry-specific guidelines for business operation best practices.

The business groups' Wednesday letter follows a similar request made by a conservative bloc of 21 state attorneys general asking Congress for a "common-sense framework to provide liability protections" for reopening businesses.

"Businesses need clearly defined expectations for the safe and appropriate continuance of operations while being protected from devastating civil liability litigation concerning baseless COVID-related claims," said the group, led by Georgia Attorney General Chris Carr and joined by Florida, Texas and other states, in a May 11 letter.

--Editing by Bruce Goldman.

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