Re-opening small businesses need some protection from liability
Without it, they risk a second economic blow and knockout punch
As Connecticut gradually reopens and small business owners do all they can to protect the health of their customers and employees by following required safety protocols, there is another big financial threat facing small businesses. Even if the owners comply with every industry-specific provision on social distancing, ingress and egress, wearing face coverings, or putting up Plexiglass barriers, they may still be hit with unjustified lawsuits related to COVID-19 brought by unscrupulous lawyers and willing plaintiffs.
In Phase 2 of the reopening, there will inevitably be more interactions between small businesses and the public. With increased economic activity comes increased risk and a greater potential of lawsuits. While attempting to comply with the state’s guidelines may be asserted as part of a legal defense, it won’t keep small businesses out of court at first.
A single lawsuit can wipe out a small business even if all that is required was done and the owner acted in good faith during the health crisis. The cost of putting up a legal defense is more than most Main Street businesses can afford in normal times, let alone during a post-pandemic recovery. Even if they aren’t culpable, they may have little choice but to settle the case. Certain trial lawyers know this and are looking to force settlements anyway. Those attorneys don’t want to take the time and money for a trial either, because proving an invisible virus droplet at a business landed on the plaintiff and infected them could be hard to prove.
Small businesses can be caught between a rock and a hard place. In the flurry of lawsuits being filed over COVID, there is one claiming a violation of the American’s with Disabilities Act by those told they could not enter a store without a face mask who claim their physical condition prevented them from wearing one. For years, under the ADA, there have been problems with serial claimants filing multiple cases and the pandemic has created a similar situation ripe for lawsuit abuse.
While Connecticut’s state guidelines currently say masks are not required for those with a contrary medical condition, there is no way for a business owner to verify this. What happens if a business owner admits someone without a mask who then may spread the infection to others? Will these small businesses be held harmless?
To prevent this, both Congress and state lawmakers should pass bills to protect businesses from civil suits in both the federal and state courts, however, they should not offer blanket protection or across the board immunity. Business owners who knowingly fail to develop and implement a reasonable plan for reducing the risk of exposure to COVID-19 and it results in someone being injured should not be covered. Lawsuits claiming exposure to COVID-19 should also be limited to those who experience serious illness resulting in hospitalization. And, fines should be imposed on lawyers who bring frivolous COVID-19 lawsuits.
When Gov. Ned Lamont signed an executive order granting limited legal immunity to health professionals and facilities on the front lines of the disease, that was the right thing to do during the health crisis. Now, during the economic recovery, the state government also needs to protect small businesses that may face unjustified lawsuits. Then, those small businesses can help lead the state’s recovery and also save the 750,000 jobs they create in Connecticut.
Andy Markowski is the Connecticut State Director of the National Federation of Independent Business.
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