Trump and McConnell’s COVID-19 Liability Protections Are Completely Unnecessary

Mitch McConnell and Kevin McCarthy stand behind and look at Donald Trump.
They should not be allowed to screw with liability law at the next one of these. Jim Watson/Getty Images

On Thursday, President Donald Trump expressed support for Senate Majority Leader Mitch McConnell’s proposal to include immunity from liability for companies that reopen in the midst of the COVID-19 pandemic in future coronavirus response legislation. “I think you have to have something having to do with liability for COVID,” Trump told reporters. “Because you can’t have a restaurant … and somebody leaves, and they say, ‘Oh, I’m going to sue them,’ because they caught the plague. And now, whether he was guilty or not, the legal fees will drive him out of business. You can’t do that.”

Unsurprisingly, Trump’s understanding and description of current liability law is facile and wrong. While businesses should be worried about liability issues around their decisions to open to some degree, the risk is nothing like what the president describes.

First, there’s already COVID-19-related immunity for those who provide “countermeasures” for combating the disease. The protection covers even routine errors that would otherwise be clear cases for liability—such as a claim against a doctor for administering the wrong dosage of an anti-viral drug. Businesses worried about liability to employees and customers might be reluctant to reopen without the promise of similar protection, but current liability law is not going to pose burdensome difficulties on businesses that take reasonable action to keep their customers safe; such relief is not necessary.

As a general matter, those who hold businesses or other spaces open to the public—ranging from small coffee shops, to big-box retailers, to operators of large stadiums, to educational institutions and places of worship—have a duty to those on the premises to exercise reasonable care for their safety. While this responsibility often translates into liability for mundane errors such as slippery floors or other dangerous conditions on the premises, in the current climate the duty would also apply to the proprietor of, say, a bowling alley to make sure that the balls are cleaned before each new customer picks them up. But once we get beyond easy examples, the issue of what’s reasonable quickly gets sticky.

State and local directives can provide a strong indication of reasonableness both for businesses and courts, but they won’t answer every tough question. (Were there a properly functioning federal government, guidance would come from the CDC. But that’s not the world we are in.) One thorny problem is what to do when state and local concerns don’t sync up. Consider, Georgia, where Gov. Brian Kemp allowed certain businesses to reopen recently, even in the face of a rising number of cases in certain cities. Atlanta’s mayor, Keisha Lance Bottoms, contradicted the state mandate, urging her city’s residents to “Stay Home. Nothing has changed.” These mixed signals produced confused responses, with some businesses opening and following social distancing guidelines and others remaining shuttered. Those Georgia businesses that choose to open might find themselves on the wrong end of lawsuits by those who contract COVID-19; they’ll use the contrary statements of local officials about the dangers of reopening to bolster their arguments.

Even when there are clear and consistent guidelines and rules, though, the liability question will be difficult to answer. Following the guidelines will provide evidence of reasonableness but won’t necessarily get business owners off the hook. Just as obeying the speed limit doesn’t immunize drivers from liability for driving at an inappropriate speed for certain weather conditions, so too might a business be found responsible for even an authorized reopening. What if the area is seeing a dramatic resurgence in cases? Then the business might not be off the hook even if following the directive, because perhaps other, more cautious business owners in the area didn’t reopen (again, the Georgia example).

A business that might be considered to have properly reopened can still find itself liable to customers for failure at the level of implementation of whatever safety protocols are required. What happens if the business can’t—or doesn’t—follow social distancing rules, which are almost impossible to fully implement anyway? Or if the business doesn’t require masks, or allows customers to wear them improperly? And what if a reasonable business would do more, such as taking the temperature of each customer as they enter the business? (Even though that’s not being widely done in the United States right now, it’s an easy precaution to take—and can at least bring down the rate of transmission.)

It’s much less likely that employers will be liable to their employees for compelling them to return to work because of the workers’ compensation system—which was explicitly designed as a tort-replacement system for the workplace. Employees are generally restricted to seeking the remedies provided under that system for job-related injuries.

But will an employee even be able to prove that they contracted COVID-19 on the job? That might be an easy showing to make for those in meatpacking plants, where the virus is rampant, but could otherwise be difficult. Given the prevalence of the virus in many communities, the employer can push back against the allegation that the illness-causing exposure happened on the job.

Indeed, that same problem of demonstrating causation can be expected to plague many of the claims that infected customers, or survivors, might try to bring against their local nail salon, restaurant, or hatchet-throwing site. Showing that clusters of people who visited a particular business subsequently were sickened by COVID-19 will be helpful to plaintiffs in those cases, but more isolated instances will pose a serious hurdle. The litigant will try to prove that the establishment didn’t act reasonably—the worse the failure to take reasonable precautions, the stronger their case—and that their transmission can’t be traced to any other sources. Many of these cases will be uphill climbs.

One set of potential defendants that likely need not worry are local and state governments and the officials in charge of them. Immunity will in most cases protect them from liability, unless perhaps they are found to be reckless, or worse, under their state laws. So a subway rider who contracts COVID-19 during their morning commute is likely without remedy if the city fails to properly sanitize the cars.

In the end, liability is not likely to present a huge problem for businesses—as long as they make some reasonable effort to keep their places as safe as possible under these very difficult circumstances. It’s certainly not necessary to hold up desperately needed aid over this issue.