Almost from the moment American businesses began considering reopening amid the ongoing COVID-19 pandemic, legal liability has been among their chief concerns. According to the New York Times, the struggle regarding liability legislation revolves around finding a balance between allowing businesses the confidence they need to ensure they will not become the focus of overzealous lawsuits from employees and customers that may become infected while also ensuring that businesses that don’t take adequate steps to keep their workers and customers safe can still be held accountable1.
In March, Senator Mitch McConnell expressed the concern associated with liability in an interview with Fox News Radio, “The trial lawyers are sharpening their pencils to come after health care providers and businesses, arguing that somehow the decision they made with regard to reopening adversely affected the health of someone else.”
Conversely, in an op-ed for Market Watch, author and Professor of Law at Georgia State University, argues that law abiding, thoughtful business owners are most likely to take reasonable action to prevent coronavirus transmission regardless of potential lawsuits2. His stance points to the difficulty associated with providing sufficient evidence of causation in order for a plaintiff to successfully bring suit.
From the employee perspective, however, Forbes reports a rise in employment lawsuits related to COVID-19 in arenas such as FMLA interference, breach of contract, retaliation, discrimination and wrongful termination as among the most prevalent as of September3. The lawsuits in question cite disputes regarding retaliation for COVID-related medical leave, broken contractual guarantees of employment due to pandemic-related cutbacks and wrongful termination of whistleblowers to name a few.
The uncertainty surrounding liability, employee protection and consumer safety are the driving force behind Michigan legislative focus on setting legal liability expectations for the state. To that end, lawmakers passed four bills related to coronavirus immunity in an overnight session last week, according to the Detroit Free Press. The bills in question, HB 6030, HB 6031, HB 6032 and HB 6101, supported by the MICPA, essentially support business owners that strictly follow local and state health and safety guidelines by protecting them from lawsuits as a result of an employee or customer COVID-19 infection. If a company follows all the rules in place at the time an illness occurs, the chances of a successful lawsuit are significantly low as a result4.
Likewise, employees are protected if they contract the virus and cannot report to work due to illness or mandatory 14-day quarantine. It also protects employees against retaliation and discrimination related to COVID-19 circumstances. Additionally, the bills will expand state unemployment benefits to include 26 weeks of insurance for those experiencing job loss related to the pandemic.
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