Fortunately, there is room for a principled compromise. Businesses don’t need blanket immunity from coronavirus lawsuits, and Congress shouldn’t give it to them. But a narrower liability carveout for businesses that engage in proactive contact-tracing efforts would make sense — both for the economy and for public health. The House and Senate can’t agree on much these days, but they should be able to agree on this.
The “avalanche” of covid-19 lawsuits that McConnell and his allies predicted in April has yet to arrive. According to data from the law firm Hunton Andrews Kurth, consumers and employees across the country have filed fewer than 100 personal-injury and wrongful-death suits arising from covid-19 exposures workplace or business settings.
Still, McConnell says that the inclusion of liability reform in the next round of pandemic aid is a “red line,” without which Republicans won’t pass the package. Under the plan released Monday, a plaintiff suing a business for injuries arising from a coronavirus exposure would need to prove by “clear and convincing evidence” that his or her injuries were caused by the defendant’s gross negligence. Even then, the defendant could escape liability if it was complying with government guidance.
All of these provisions mark sharp breaks from existing tort law. Normally, a plaintiff only needs to show that his or her injuries “more likely than not” resulted from the defendant’s “negligence” (not “gross negligence”). And a defendant’s compliance with government guidance does not confer immunity under other circumstances.
Democratic leaders have derided McConnell’s liability ideas. Asked about the possibility of a lawsuit shield in a covid-19 relief bill earlier this month, House Speaker Nancy Pelosi (D-Calif.) responded: “I mean, that is just — no.”
Other lawmakers, though, have suggested an openness to compromise. “I’m not going to give a blank check and blanket immunity to somebody,” said Sen. Doug Jones (D-Ala.). But Jones, who is facing a fierce reelection battle this November, added that he is hopeful his colleagues can strike an “appropriate balance” between protecting businesses and protecting public health.
Jones is right to search for reform possibilities. There are genuine reasons to worry that current tort liability rules could interfere with contact-tracing efforts and, as a result, contribute to the virus’s spread. But there are viable fixes with the potential to garner bipartisan support.
To understand how the existing regime creates potential problems, consider this scenario: A hairdresser calls in sick with symptoms of covid-19 and soon tests positive for the virus. Her salon could — through its booking system — find phone numbers or email addresses for dozens of customers whom the hairdresser served in the last several days. But the salon owner worries that by doing so, she could be opening the door to lawsuits from customers who become ill.
Hopefully, the salon owner in this scenario would accept the liability risk and do the right thing, informing her customers immediately that they may have been exposed. But we write laws for real people in our own flawed world, not for angels in an ideal one. Business owners across the country are worried — rightly or wrongly — that they might be hit with crushing tort claims even if they took reasonable precautions to reduce transmission risk. And if the salon owner balks at picking up the phone because she is concerned about attracting lawsuits, customers might not learn about their exposures until they already have transmitted the virus to others.
This is the pinch that our current regime creates. Before anyone is injured, the threat of tort liability encourages businesses to take safety precautions so they can avoid subsequent lawsuits. But after an injury, tort law can generate perverse incentives. Businesses reasonably worry that if they proactively alert their customers to potential exposures, they may be inviting lawsuits. Tort liability, which can enhance public safety in other contexts, now can become a hindrance.
The problem isn’t unique to covid-19. Lawsuit fears may discourage manufacturers from disclosing product defects and may discourage doctors from informing patients of medical mistakes. But the coronavirus context presents particular challenges. Here, there is a need for speed: We want the hypothetical salon owner — and actual business owners across the country — to tell customers as soon as possible about potential exposures so those customers can get tested and self-isolate. That’s less likely if business owners believe that reaching out will raise the risk of costly, or even crushing, lawsuits.
This concern does not justify the sort of sweeping protections that McConnell has proposed. But it does suggest the desirability of a narrow fix: A safe harbor from tort liability for businesses that inform customers about potential exposures within 24 hours of the business receiving notice that one of its employees or another customer on its premises had covid-19. When a business learns that it may have been a transmission site, we want customers’ phones and inboxes to light up. The last thing we should want is for liability fears to stand in the way.
There are, to be sure, real costs to this proposal, though we think the benefits outweigh all of them.
First, the proposal would stop some customers from collecting damages when they are infected due to a business’s negligence. But truth be told, it will be very difficult for customers to win lawsuits arising out of covid-19 exposures anyway. A customer who alleges that she was exposed to the virus at a particular establishment would need to show she “more likely than not” contracted covid-19 there, and not from a family member or stranger or at some other establishment. That will be hard — unless, of course, the business tells customers where they were likely exposed.
Another possible downside is that a safe harbor might weaken incentives for businesses to take safety precautions in the first place. But businesses still won’t want their premises to become infection sites: A reputation as a coronavirus hot spot probably isn’t good for your Yelp rating. And state and local authorities can mitigate this risk through robust enforcement of mask ordinances, social distancing protocols and other public health measures.
To ensure that a safe harbor does not become a get-out-of-jail-free card for bad actors, it ought not apply to claims of gross negligence or recklessness. For example, a salon or restaurant that doesn’t require its employees to wear masks should be liable regardless. And the safe harbor should not apply unless the business actually informs the customer of the potential exposure — through a live telephone conversation, voice mail or email — within 24 hours of learning about it. (We would also suggest a 14-day outer limit from the time of exposure after which the safe harbor would become unavailable, even if that’s the first time the business learns it was a possible transmission node.)
Of course, many businesses don’t have their customers’ contact information. In that case, they won’t be able to take advantage of the safe harbor. The rule would, though, encourage businesses to maintain up-to-date phone and email details for their customers, which will also aid contact tracers in their efforts to track down people who have been exposed to the virus.
Our proposal makes it more likely that customers will learn about exposures — and fast. This is a simple, common-sense approach. It’s a deal that should be easy even for lawmakers at loggerheads to strike. The biggest winner would be public health.