For Senate Majority Leader Mitch McConnell (R-KY) and congressional Republicans, the “COVID 4” bill that Congress and the White House hope to pass by early August must contain liability protection from frivolous lawsuits for businesses, medical workers, schools and other entities.  According to the Daily Mail, more than 770 COVID-based lawsuits had been filed by May 4 against hospitals, nursing homes, gyms, airlines, and cruise lines, including class actions such as the lawsuit against Ticketmaster over canceled live events.  Though a growing number of states have been passing immunity measures, they appear to be mostly for hospitals and nursing homes, and a national plan that creates a standard legal safe harbor in all fifty states is needed. 

Small businesses in particular are concerned about the threat of legal action even though they’ve spent to keep their businesses and customers safe.  Republicans want a limited safe harbor that is not blanket immunity and would sunset after several years.  But when House Democrats passed their version of a COVID 4 bill, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, H.R. 6800, in May, it had no liability language and would require the Occupational Safety and Health Administration (OSHA) to issue a COVID-19 Emergency Temporary Standard.  

At a May 18 Senate Judiciary Committee hearing entitled, “Examining Liability During the COVID-19 Pandemic,” Democrats argued that what is really needed is not liability protections for businesses, but a clear standard such as that from OSHA.  However, the DC Circuit Court dismissed an AFL-CIO petition to force an OSHA Emergency Temporary Standard for COVID-19, and attorneys for business groups argued that OSHA’s guidance documents, website FAQs, and utilization of existing regulations is best insofar as being more agile than a standard to deal with the almost daily changes from the CDC.  These attorneys also suggested that during a pandemic, employers need agency guidance more than enforcement.