COVID-19: Do You Have Liability?

Lawmakers are looking into legislation to shield employers against unreasonable liability due to the COVID-19 pandemic.

While some states have enacted laws shielding business from some liability, guidance varies greatly between jurisdictions regarding which businesses qualify for immunity; which actions or omissions are protected; and how long immunity lasts.

A proposed federal law, the Safe to Work Act, S. 4317, would temporarily protect businesses, nonprofits, health providers and educational institutions that follow public health guidelines. However, the proposed legislation would still hold businesses accountable for willful misconduct and gross negligence.

The federal proposal would apply retroactively to pending coronavirus-related actions through at least Sept. 30, 2024.

Here are some types of COVID-19 liabilities businesses and employers could face in the private sector:

• General Liability: Lawsuits already have been filed by individuals and groups alleging that certain businesses did not follow recommended precautions and therefore failed to protect the public. These lawsuits are difficult to prove since the virus is widespread and the modes of exposure and transmission often are difficult to pinpoint.
• Breach of Contract: Businesses that require pre-payment for services could be sued for failure to pay refunds or reschedule events and services.
• Products Liability: These lawsuits allege that personal protective equipment and/or health and safety products were defective.
• Workers’ Compensation: Employees who say they contracted the coronavirus at work face the same challenges as individuals who are filing general liability lawsuits. They must prove the exposure occurred at work or while the employee was acting on behalf of the employer.
• Medical Care and Diagnostics: Medical malpractice cases may be filed regarding the diagnosis and treatment of coronavirus-infected patients — by physicians, hospitals or labs. Lawsuits are expected against nursing homes for failing to properly diagnose, treat and/or quarantine patients or for failing to enact and enforce proper protocols.

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