COVID-19 Reading List

July 17, 2020

Jonathan D. Urick, U.S. Chamber Litigation Center

This week’s reporting and commentary on COVID-19 litigation focused on forthcoming proposals in Congress for liability protections, the limits of existing federal and state lawsuit shields, undeterred plaintiffs’ attorneys pursuing litigation and advertising despite such protections, the surge in workplace class-actions, and the debate over masks.

Congress Debates Liability Protections and a Potential Compromise

According to Politico, “with coronavirus cases surging and a debate raging over reopening schools this fall, the GOP has finally come around to the idea” of passing another coronavirus relief package, “and we could see some movement as soon as next week.”  Senate Majority Leader Mitch McConnell reiterated, however, that “no bill will pass the Senate without liability protection for everyone related to the coronavirus.”

CNN likewise confirms that the White House and Senate Republicans are expected to roll out a proposal, possibly next week, that will “include financial incentives to push schools to reopen while also shielding health care workers and companies against lawsuits.”

Newsday reports that the debate over liability protections will be “[o]ne of the biggest battles” in Congress.  But “there may be room for a compromise,” in which the Occupational Safety and Health Administration issues emergency workplace safety standards that act as a safe harbor for employers that comply.  “Democrats had initially called such liability protections a nonstarter,” according to the Los Angeles Times, “but have hedged a bit in recent weeks,” appearing somewhat more open to the idea.

Current Federal Liability Protections and State Uncertainty

Over at J.D. Supra, attorneys from Pillsbury summarize existing federal liability protections in the CARES Act and other coronavirus legislation and regulations.  “Despite the ongoing debate” in Congress over broad lawsuit protections, “some areas of compromise have been achieved and some federal legislation has been passed offering civil liability protections as part of the larger federal COVID-19 response packages.”  These targeted protections are limited, the attorneys explain, to “health care providers and manufacturers and distributors of health care products used for the current public health crisis.”

Even so, the attorneys caution that without federal protections, businesses largely remain under a cloud of litigation uncertainty: “The lagging federal government response in passing more comprehensive legislation providing clear protections for businesses outside of the health care context leaves businesses, particularly those operating across state lines, to disentangle a web of different state laws offering differing standards of protection—or none at all.”

Bloomberg Law similarly reports that, while “[m]ore than half of U.S. states have enacted laws to limit businesses’ liability related to Covid-19,” their “substantial differences” create an uncertain “patchwork of risks and liabilities that may have far-reaching consequences for businesses, consumers, and workers.”  Some states’ laws “can be difficult to parse, and many apply unevenly to different areas of the economy.”

Plaintiffs’ Advertising, Workplace Class Actions Surge

According to Law360, despite state coronavirus liability protections for nursing homes, plaintiffs’ attorneys remain “undaunted,” insisting that “they won't be stopped from filing suits” due to “exceptions and potential constitutional challenges” to such legislation and executive orders.

“We’ve definitely seen an aggressive uptick in COVID-related advertising pretty much from the beginning of the year till now,” ILR Senior Vice President Oriana Senatore recently told The Epoch Times.  In the same article, The Epoch Times reports that new workplace class-action lawsuits related to the coronavirus “doubled between April and June.”

As More Retailers Require Masks, National Standards Needed

As reported in the Wall Street Journal, more and more retailers are requiring masks.  Differing rules across the country concerning masks have “prompted business leaders to call on the White House and state leaders to adopt a national mask policy.”

“‘Issuing voluntary guidance on masks is insufficient to protect public health’ and risks continued community spread and a new round of shutdowns, the U.S. Chamber of Commerce, National Retail Federation and other business groups wrote in a July 2 letter to the White House and governors.”  National rules are especially important as some companies have been sued for requiring masks, while others have been sued for not requiring them.