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June 8, 2020

Why Are COVID-19 Business Liability Protections Necessary?

As Connecting the Dots reported here and here, the Metals Service Center Institute has joined with the U.S. Chamber of Commerce, the National Association of Manufacturers, other businesses trade associations, and representatives of the healthcare industry to support legislation that would protect employers against frivolous COVID-19-related lawsuits.

Why are these protections necessary?

The American Action Forum’s Director of Health Care Policy Christopher Holt answers that question in this article. Holt notes that small businesses have been “slow to reopen” and “one of the foremost [reasons] is legal liability.” That’s why some states, including Mississippi, South Carolina, and Connecticut, are debating legal protections. While positive, those efforts are not good enough, however,

Holt argues, so Congress must step in to put in place a uniform, national law. One specific reason that businesses need liability protection is because the guidance put out by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) for protecting employees “is explicitly not a standard or regulation and in OSHA’s own words ‘creates no new legal obligations.’” Holt also notes compliance with those guidelines “would not necessarily provide legal immunity.”

As a result, he concludes, “Employers will have to shoulder the bill for addressing COVID-19 in the workplace; that’s simply the reality of doing business for the foreseeable future. But Congress and the administration should act, based on the recommendations of public health officials, to clarify what constitutes a safe workplace and to protect already-reeling businesses from frivolous lawsuits that will further impede any economic recovery from the pandemic.”

(In related news: for more information about how to comply with CDC employee safety guidance, check out this blog post from the law firm Kelley Drye.)