States braced for a wave of COVID lawsuits. It never arrived.

By: - July 29, 2021 1:31 pm

Spencer Platt/Getty Images

In a legislative flurry, 30 states, including Michigan, instituted liability protections in late 2020 and early 2021 designed to protect businesses from COVID-19 lawsuits, out of fear that companies would be sued for exposing workers, clients or vendors to the swiftly spreading, deadly disease.

Those lawsuits haven’t materialized.

Proponents of the new laws say that’s because the statutes have scared off potential litigation. But critics say the actions have created a solution in search of a problem, because most employees who sue do so under existing workplace safety regulations, such as those enforced by the federal Occupational Safety and Health Administration, or under union rules.

And because of the nature of COVID-19, including how fast and easily it spreads, pinpointing and proving the exact location where someone got the virus is difficult. Neither OSHA nor most states issued COVID-19 rules for workplaces in the past year, though a few liberal-leaning states did.

The dearth of litigation could stem from all those things.

“The liability shield laws themselves have discouraged plaintiffs’ lawyers from trying to bring suits,” said Torsten Kracht, an attorney with national law firm Hunton Andrews Kurth.

His firm mostly represents businesses that have been sued, but it has sometimes represented plaintiffs as well, he said.

“In cases where you have employees who got sick on the job, their recourse is really through workers’ comp claims,” he added. “I think that may be another reason.”

Gov. signs bipartisan business liability bills amid COVID-19 crisis 

Hunton Andrews Kurth’s COVID-19 “complaint tracker” shows about 200 civil suits have been filed nationwide by workers in 2021 and just 52 have been filed by nonemployees who allege they got COVID-19 in a place of business. The tracker showed 1,700 coronavirus-related civil rights cases and 771 COVID-19 consumer cases over the same time period.

Kracht said isolating where someone contracted COVID-19 is easy only if those people were in a controlled environment such as a cruise ship at sea for more than 14 days.

“But if I’m a person out in the world—shopping, eating, etc.—it’s pretty hard to prove where I got it.”

He knew of no cases that had made it all the way through the legal process to a conclusion either way.

Many of the state laws were based on model legislation distributed by the American Legislative Exchange Council, a conservative group known as ALEC.

The ALEC model bill—titled the “Liability Protection for Employers in a Declared Disaster or Public Emergency Act” — would allow proprietors or businesses to operate during a declared disaster or public emergency without the threat of civil litigation if they complied with or made a “good faith effort” to comply with applicable federal, state or local regulations, orders or laws, said ALEC spokesperson Alexis Jarrett, in an email.

Jarrett said suits for coronavirus-related issues are likely to crop up in the coming months and years, which is why the state legislation, and the ALEC model most of them are based on, are necessary.

The new liability protection laws vary, but most of them seek to protect all or specific kinds of businesses from lawsuits that attempt to establish culpability. Exceptions are usually made for negligence, willful misconduct or a provable failure to follow public health orders.

Many governors, especially Republicans in the 23 states where the GOP holds both houses of the legislature and the governorship, championed the liability limitations laws. An example was Gov. Mike Parson of Missouri, who used the Smokin’ Guns BBQ restaurant in north Kansas City as a backdrop this month to sign his state’s version of the law. (And get a little barbecue on the side.)

“We didn’t want to punish small businesses for just trying to do the right thing,” Parson said at the restaurant ceremony. “So we’ll move over here [to a table] and sign this into law. Or have ribs,” he said, as he signed the official document sitting next to a platter of food.

The anti-litigation push was driven by business groups such as state chambers of commerce and other pro-business organizations. In the panic that accompanied the arrival of COVID-19 in the United States early last year, businesses were trying to decide whether to close altogether, or open under ever-changing guidelines and risk exposure to lawsuits. They pressured lawmakers to act.

That’s exactly what happened in New Hampshire, where the Business and Industry Association of New Hampshire pushed for action.

New Hampshire state Sen. Bob Giuda, a Republican, said in a phone interview that he was approached by businesses in his state. “Small ones were really hammered [by COVID-19],” he said. “My job is to protect businesses, and therefore jobs, from further torsion due to legal expenses.”

Giuda, a retired pilot who also owns a small company that takes people on private airplane rides, said the businesses would face legal fees defending against lawsuits even if they did nothing wrong. And, he added, since state and federal guidelines changed frequently and rapidly, especially before vaccines became widely available, “I didn’t want them to suffer for not complying with a rule they were not familiar with or that was badly promulgated.”

COVID liability shield laws by state | Stateline graphic

But his bill ran into trouble in the legislature and did not pass, making New Hampshire one of only two states fully controlled by Republicans not to pass a shield bill during the pandemic. The other was Arkansas; there, however, Gov. Asa Hutchinson signed an executive order to exempt businesses from liability.

Opponents argued there was no outcry in the Granite State for COVID-19 liability suits partly because New Hampshire law, unlike most states, doesn’t allow for punitive damages in personal injury cases.

“We have not heard the clamor in this firm for this type of relief,” testified attorney Paul Chant, of the law firm Cooper Cargill Chant, before the New Hampshire legislature’s Commerce Committee in February. “The pitch is off a little bit. This is a conservative state. We don’t have runaway juries and we don’t have excessive damages.” Negligence suits already are allowed by New Hampshire law, he added.

Giuda may bring it up again next year, he said, but the idea looks “feeble” at the moment.

Momentum for the liability shields picked up throughout the spring and early summer, said Ashley Cuttino, a labor and employment lawyer at the Ogletree Deakins firm in Greenville, South Carolina.

“Once something started happening in one place, we started seeing a waterfall across states,” she said in a telephone interview. “Some states passed a liability shield, others adjusted workers’ compensation law to say, ‘We assume you got COVID at work unless an employer can prove differently.’”

She said the movement got started because in the beginning of the pandemic, many people who left their homes did so for work, and employers at essential businesses “needed to figure out how to keep operational without understanding what the pandemic was.”

Tyson workers have had plastic dividers separating them on the production line. | Photo provided by Tyson Fresh Meats

 

So far, she said, there have been no big wins by plaintiffs, even in states without shields, partly because most of the suits are “just hitting their stride in litigation right now. It’s early.”

She pointed to one lawsuit in Texas, which enacted a business COVID-19 shield law June 14, as an example. Gov. Greg Abbott, a Republican, signed the liability bill into law over the objections of labor unions.

The suit, Elijah v. Pilgrim’s Pride, was filed on behalf of two employees of a meatpacking plant owned by poultry company Pilgrim’s Pride. It could be a test case for Texas’ law, which provides protections for health care providers, businesses, nonprofits, religious institutions and schools.

“We stand for workers’ ability to be compensated for injuries on the job,” said Texas AFL-CIO spokesperson Rene Lara in a text message to Stateline. “Unfortunately, Texas companies are not required to provide worker’s compensation. A lawsuit is the next resort. This bill just raises the bar on a worker’s ability to hold an employer accountable for unsafe working conditions.”

The suit alleges that the working conditions resulted in employees standing “shoulder to shoulder” during the workday.

“Despite an uncontrolled COVID-19 outbreak, Defendant Pilgrim’s Pride required its employees to work long hours in cramped conditions. Moreover, despite the danger of COVID-19, Defendant Pilgrim’s Pride failed to provide appropriate personal protective equipment and failed to implement sufficient social distancing or safety measures to protect workers from the outbreak,” the wrongful death suit alleges.

COVID-19 cases have been particularly prevalent in the meatpacking industry, according to a study led by a researcher at the University of California, Davis. The study found an estimated 334,400 cases attributable to meatpacking plants and found that beef and pork producing plants increased per capita infection rates by 160% in the counties where they were located. Chicken plants increased transmission rates by 20%, according to the paper.

The company has filed motions to dismiss the case, according to a clerk at the U.S. District Courthouse in Texarkana, but did not respond to Stateline’s request for comment.

The suit says custodian Sybil Elijah contracted COVID-19 in May 2020 while working at the Pilgrim’s plant in Mount Pleasant, Texas. She allegedly brought the virus home to her husband, David Elijah, who was disabled and later died. Another worker at the plant, Elnora Brown, whose husband, Rayford Brown, is also named as a plaintiff in the suit, also is alleged to have gotten COVID-19 at the plant. She died June 16.

This story first ran in Stateline,  an initiative of The Pew Charitable Trusts. Read the story here.

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Elaine S. Povich
Elaine S. Povich

Elaine S. Povich covers consumer affairs for Stateline. Povich has reported for Newsday, the Chicago Tribune and United Press International. She also has worked as a freelancer for the Washington Post, the Fiscal Times, Governing, Kiplinger and AARP Bulletin. She has written three books, including "John McCain: American Maverick," and is at work on a fourth. She is an adjunct professor of journalism at the University of Maryland. Povich received the Everett McKinley Dirksen Award for Distinguished Reporting of Congress for her work on how the personal health care stories of members of Congress affect policy.

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