Pressure Mounts for Federal Legislation Protecting Businesses from COVID-19 Lawsuits, But Don't Count on It

A handful of cases have been filed against employers around the country, alleging that employees and customers were exposed to coronavirus through negligent corporate policymaking and lax enforcement. As stay-at-home orders begin to be lifted in some regions, many are expecting this trickle of COVID-19 exposure lawsuits to turn into a deluge, inundating businesses that have already been weakened by the unprecedented economic downturn that the pandemic has caused. To save businesses from this deluge, and bolster their ability to recover, many are advocating broad federal legislation limiting the liability of companies as they try to adapt to the pandemic.

There is already a patchwork of federal and state protections that limit liability for certain health-care providers, manufacturers, and volunteers. For example, the Secretary of HHS used his authority under the 2005 PREP Act to confer limited immunity from liability to certain manufacturers and health-care providers against any claim of loss resulting from the manufacture, distribution, administration, or use of medical countermeasures. The recently passed CARES Act also confers limited immunity on health-care volunteers responding to the pandemic. And some states have also acted to limit the exposure of medical professionals to liability. Governor Cuomo of New York, for example, issued Executive Order 202.10, which limits the civil liabilities of medical practitioners responding the pandemic. Other states, including New Jersey, have taken similar actions.