Employers fear litigation as stimulus gives no liability help

Following Congress' decision not to include a business liability shield in its $900 billion stimulus package, attorneys are advising employers to more vigilantly follow government COVID-19 safety rules to avoid losing lawsuits. But it likely won't be enough, they say.

While some say careful compliance with the law would benefit workers and businesses by slowing the spread of the virus, others say the virus is too contagious for employers to ever insulate themselves from liability -- no matter how vigilantly they follow the rules.

"I think the main message for employers is: You need to follow these new requirements to the letter of the law," said Benjamin M. Ebbink, who represents employers as a partner at Fisher & Phillips LLP. "The concern for businesses -- and why this was something that was sought at the federal level -- just based on the community spread and the way this pandemic is operating, there's no guarantee that you can 100% stop transmission even if you follow every guideline."

"We can do everything to the letter of the law, but there's some element of this that's outside of our control," Ebbink said.

Senate Majority Leader Mitch McConnell, R-Kentucky, said Tuesday he wanted to temporarily set aside Congress' debate around the business liability shield in order to push the stimulus package forward. Talks of the package have inched along for months, with Congress approving it late Monday -- shortly before a number of pandemic relief provisions are set to expire at the end of the year. McConnell has long pushed for a broad liability shield, and indicated he will insist any pandemic relief legislation Congress discusses next year include one.

Wendy Musell, a plaintiffs' attorney who runs her own firm and is of counsel with Levy Vinick Burrell Hyams LLP, said absent a federal liability shield that is specifically written to preempt state laws, the legislation and guidelines California introduced this year to protect workers from the virus will remain intact. But she insists those rules benefit businesses, too.

"If you have large outbreaks, and consumers and employees are going bankrupt and are incredibly ill because of COVID ... it has a large impact on our economy," she said. "It's just something I think is missed in the discussion with those who are trying to foist ... get out jail free cards for those who violate the law."

Musell also said businesses that believe they are at high risk of worker lawsuits may be misguided. Citing data provided earlier this month by Hunton Andrew Kurth's online complaint tracker, which was published by the Washington Post, Musell claimed workers only filed 116 COVID-related lawsuits out of about 6,500 virus complaints filed across the nation this year.

"Who's really filing these lawsuits? ... It's not workers and it's not consumers. It's business to business," she said. "If you're not acting recklessly and endangering the lives of others, you're highly unlikely to be found culpable from a liability standpoint if you're following the guidance, if you're providing the safeguards."

That may change, however. "It's the increase in the number of COVID cases, and the increase in the legislation and regulations that are being implemented that increase an employer's potential exposure," said Janie F. Schulman, a partner at Morrison & Foerster LLP. She also noted there are a wide variety of virus-related issues workers can sue their employers over.

"There are other kinds of lawsuits being filed as well -- not necessarily just based on getting COVID in the workplace, but also claims of retaliation for raising objections about safety standards, and claims of failure to provide required leave under various statutes," Schulman said. "From an employer standpoint, making a shield broader than just protecting the employer from lawsuits arising from a case of COVID in the workplace would be better."

"Now whether that's realistic," she said, "is a completely different question."