Small Businesses Need COVID-19 Liability Protections

Date: September 10, 2020

This column is by NFIB State Director Tom Underwood

Kentucky has done a pretty good job so far of managing the coronavirus. The number of new cases may be trending higher, but we haven’t seen the spikes other states saw after they began reopening their economies.

Small business owners understand the importance of following CDC guidelines to protect the health of their employees and customers, but doing business during a pandemic isn’t easy. Our members know that health officials have issued guidelines to keep people safe.

But there’s one area where small businesses do think our elected leaders can and should help – protecting small businesses from frivolous lawsuits that try to exploit the COVID-19 crisis. A recent NFIB survey found that 55% of small business owners were moderately or very concerned about increased liability because of the coronavirus.

Senate Majority Leader Mitch McConnell has said repeatedly that liability protections for small businesses, healthcare providers, and schools are his top priority in future COVID-response legislation. NFIB supports liability protections for small business owners and thanks Leader McConnell for adopting many of NFIB’s “Liability Protection Principles” in the liability protections bill he introduced, the “SAFE TO WORK Act.” 

   ·  NFIB believes the workers’ compensation system should be the only means employees use to settle claims related to COVID-19. The workers’ comp system is the best way to determine whether someone contracted the coronavirus at work and should be compensated. 

   ·  Businesses should be protected from liability unless the plaintiffs can prove the business willfully failed to develop or put in place a reasonable plan to reduce the risk of exposure to COVID-19 – and that the businesses’ failure is the reason they got sick.   

   ·  Only people who were hospitalized because of the coronavirus should be allowed to sue. Doctors are still learning about COVID-19, but one thing they do know is that it affects different people in different ways. Some people have tested positive but experience few if any symptoms. We believe the Legislature and Congress should grant businesses immunity from coronavirus-related litigation except in cases of gross negligence that results in hospitalization or death. No claims for emotional injury due to contracting the virus should be permitted. 

   ·  Opportunistic trial lawyers should be held accountable for bringing frivolous COVID-19-related lawsuits. We believe sanctions should be brought against attorneys who bring frivolous COVID-19-related claims and that plaintiff’s attorney should be required to pay the defendant’s legal fees. 

Trial lawyers don’t get paid unless their clients win or defendants agree to settle, so they’re not risking anything, but the cost of defending itself against one bogus claim can be enough to put a small business out of business.

Unless we take steps to protect small businesses from unfair and unscrupulous lawsuits, Kentucky’s recovery will take even longer, and some small businesses may end up closing for good. 


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