The Problem
Businesses have faced unprecedented challenges in 2020, and many of them will never reopen their doors. The pandemic could unleash a second wave of economic crisis as personal injury law firms look to sue businesses that have been instrumental in responding to the pandemic and getting Americans back to work.
The State Solution
States need to protect the businesses that can survive. As local economies reopen, states should put reasonable constraints on lawsuits that would delay recovery or further threaten businesses’ survival.
Why This Matters
A hostile lawsuit environment will cause businesses to pull back on reopening and hiring, slow down innovative responses to the pandemic, and punish some of the very healthcare and manufacturing heroes who helped fight through the darkest days of the pandemic. After a year of government actions that have shut down economic activity and reduced consumer demand, policymakers need to protect businesses against illegitimate claims of endangering and harming customers and employees.
States Currently Implementing Tort Liability Protection
According to American Tort Reform Association, The following 16 states have enacted some form of tort protection, though in many cases (**) the legislation is limited to a topic such as healthcare workers and additional protection is needed:
Alaska**
Georgia**
Iowa
Kansas
Kentucky**
Louisiana
Massachusetts**
Mississippi
New Jersey**
New York**
North Carolina
Oklahoma
Utah
Wisconsin
Wyoming**
Tennessee
What States Can Do Next
States should enact tort liability protection covering the key topics below. Ideally, the legislation would be made effective the date of the state’s emergency declaration. At a minimal level, it should take effect immediately. Legislation should include:
- A safe harbor for businesses that comply with public health guidelines or written guidance from state and federal officials.
- Prevention of lawsuits on behalf of individuals unless that individual experienced serious physical injury. This would curtail lawsuits from those who did not develop COVID-19, were asymptomatic, or experienced common flu or cold symptoms.
- Only allow filing of a tort claim outside the workers’ compensation system when the employer intended to injure the employee.
- Allow healthcare providers broad discretion to make medical decisions during the health emergency without fear of lawsuits.
Limit liability for businesses that innovate new products or solutions to address shortages for protective equipment, medical devices, drugs and other products aiding the response to the pandemic.
Additional Resources
COVID-19 Resources (American Tort Reform Association)
Model Legislation
Iowa Model Legislation – Tort Protection