Covid-19 Liability Shield Laws: Are They Worth Saving?

Photo by engin akyurt on Unsplash

Leah Bartlam, Associate Member, University of Cincinnati Law Review

I. Introduction

Since the seemingly sudden emergence of the COVID-19 virus in the early months of 2020, Americans have had to continuously reinvent how we approach every aspect of our lives. Changing guidelines from the Center for Disease Control and Prevention, in conjunction with local and federal government mandates, have affected the routines of schools, churches, and countless organizations. At the beginning of the COVID-19 pandemic, all businesses were unsure of how to continue serving customers, but those requiring frequent face-to-face interaction with customers were particularly concerned. Further complicating matters, to determine what workers were essential, each state either followed federal guidelines, created its own rules, or offered little guidance at all.[1] Essential retailers such as grocery stores and pharmacies have remained open out of necessity throughout the COVID-19 pandemic, although their hours, policies, and cleaning procedures have changed. Other establishments like restaurants, bars, and fast-food chains converted their operations to exclusively provide carryout, curbside pickup, delivery, outdoor dining, and drive-thru options.[2] Nonessential businesses that could not operate online were forced to suspend operations altogether until they were permitted to reopen.[3]

Now, despite the advent of new COVID-19 variants, every state has reopened for business, albeit with various guidelines and regulations concerning masks, social distancing, and more.[4] As businesses were beginning to resume operations in mid-2020, some state governors and legislatures expressed concern that customers and employees might sue businesses for contracting COVID-19 while on their premises.[5] By September 2021, thirty states had enacted COVID-19 liability shield laws that purported to protect businesses from most lawsuits based on exposure to the coronavirus.[6] Ohio’s COVID-19 liability shield law was the first to expire on September 30, 2021 and is typical of most liability shield laws enacted by various states.[7]

The Background section of this post explores Ohio’s COVID-19 liability shield law, lawsuits brought by consumers based on COVID-19 exposure, and claims brought by employees. The Discussion section considers the practical implications, policy concerns, and alternative solutions to COVID-19 liability shield laws. Ultimately, this post argues that COVID-19 laws should be allowed to expire without renewal and that businesses can take steps on their own to prevent litigation.

II. Background

A. Ohio’s COVID-19 Liability Shield Law

Ohio’s COVID-19 liability shield bill is labeled “An Act To make temporary changes related to qualified civil immunity for health care and emergency services provided during a government-declared disaster or emergency and for exposure to or transmission or contraction of certain coronaviruses.”[8] Most relevant to this discussion is the second section of the act, which reads in part:

(A) No civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, unless it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.

(B) A government order, recommendation, or guideline shall neither create nor be construed as creating a duty of care upon any person that may be enforced in a cause of action or that may create a new cause of action or substantive legal right against any person with respect to the matters contained in the government order, recommendation, or guideline. […]

(C) If the immunity described in division (A) of this section does not apply, no class action shall be brought against any person alleging liability for damages for injury, death, or loss to person or property on a cause of action specified in that division.[9]

Section 2(D)(2) defines the word “person” as including an individual, a school, a for-profit or nonprofit organization, a governmental entity, a religious entity, or a state institution of higher education.[10] In short, Section 2 of Ohio’s act prevented people from bringing lawsuits against any person, school, or organization based on exposure to or contraction of COVID-19, unless that exposure was caused by reckless conduct, intentional misconduct, or willful or wanton misconduct on the part of the person being sued.[11] Sufficient evidence of reckless conduct or misconduct might be difficult to obtain, particularly if an organization took any steps towards limiting exposure, such as posting signs recommending masks. No class actions were permitted regardless of the conduct involved.[12] The General Assembly explained its reasoning for protecting business owners in Section 3(A)(3), stating that it is not the responsibility of businesses to protect the public from viruses and that individuals must take whatever steps they feel necessary to prevent exposure to COVID-19.[13]

B. Consumer Cases

Although COVID-19 liability shield laws were primarily written to protect businesses against lawsuits by customers, very few people seem interested in pursuing legal action against businesses for contracting COVID-19.[14] Since January 2020, only eighty claims have been filed by consumers related to exposure to COVID-19 in a public place.[15] Of those, forty-four were raised in California, which has not enacted a COVID-19 liability shield law.[16] Many of the few claims that have been filed are against organizations where customers and workers have extended and nearly exclusive contact with each other, such as cruise ships.[17] To date, no consumer exposure cases have been filed in Ohio, even though Ohio’s COVID-19 liability shield law has expired.[18] The majority of consumer claims related to COVID-19 across the country are based on cancellations and refunds and are therefore not prohibited under COVID-19 liability shield laws.[19]

Claims against organizations with more transient environments, where individuals may enter and leave freely, are extremely rare.[20] This rarity is best explained by the difficulty of proving where a person was exposed to COVID-19.[21] Unless the claimant lives an extraordinarily solitary lifestyle and never leaves their home, someone who contracts COVID-19 probably will not be able to present convincing evidence that they were exposed to the virus in, for example, a restaurant as opposed to the grocery store, the post office, or the workplace.[22] Although not typical of most COVID-19 liability shield laws, Florida’s law requires litigants to present a doctor’s statement supporting their claims of COVID-19 exposure in a specific place, adding yet another challenging element to cases.[23] Other factors likely contribute to low case numbers, such as the cost of hiring an attorney or the time consumed by litigation.

C. Employee Cases

Under COVID-19 liability shield laws, employers are protected from lawsuits by employees claiming exposure to COVID-19 in the workplace. This is a complex issue, however, because state and federal worker’s compensation laws already prevent nearly all lawsuits stemming from workplace illnesses.[24] Regardless, employee claims related to COVID-19 exposure are relatively rare. While statistics on these claims can vary, since January 2020, somewhere between 120 and 290 complaints have been filed nationwide.[25] In comparison, employees have filed around 1,628 claims related to disability, leave, and accommodation; over 900 complaints of retaliation; and nearly 800 claims of discrimination and harassment.[26] Clearly, employees impacted by COVID-19 are more likely to file lawsuits about the way they are treated by employers than about contracting COVID-19 while working. As in consumer lawsuits, employees face the burden of proving that they were exposed to COVID-19 in the workplace instead of somewhere else.[27]

III. Discussion

COVID-19 liability shield laws have proven to be unnecessary to protect businesses and may even harm the public interest. Practically, such laws do very little to stop litigation. Policy concerns, such as access to the courts and litigation of legitimate claims, also weigh in favor of allowing liability shield laws to expire. Finally, businesses can take steps to prevent lawsuits without help from state legislatures.

A. Practical Considerations

Although COVID-19 liability shield laws have strong language barring the majority of claims, in reality, they achieve very little. Most lawsuits brought by consumers against businesses fail, and many more are never even filed, due to the extreme burden of proving that customers were exposed to COVID-19 in a particular location. At the beginning of the COVID-19 pandemic, legal experts feared large numbers of tort lawsuits based on customers’ exposure to COVID-19 in businesses.[28] However, those fears have largely gone unrealized as remarkably few cases have been brought across the United States.[29] Although lawsuits by employees are more numerous, they are also sufficiently controlled by existing legislation specifically designed to govern employee claims. Placing additional restrictions on employee lawsuits would only serve to add confusion to an already complicated area of law. At this point in time, nearly two years since COVID-19 began affecting life in the United States, COVID-19 liability shield laws are simply unnecessary to protect businesses. Consumer and employee exposure lawsuits are too far and few between to be of any practical concern to businesses and preventing them may bar legitimate claims.

B. Policy Considerations

Several policy considerations support the position of allowing COVID-19 liability shield laws to expire. First, the extension of such laws may encourage businesses to disregard workplace health and safety guidelines, placing employees at risk unnecessarily.[30] Although the majority of COVID-19 liability shield laws allow for claims involving reckless conduct or misconduct, labor unions have still expressed concerns that such laws will embolden employers to remove rules designed to protect employees.[31] If businesses do ignore safety guidelines, customers may also be put at risk without much recourse. Allowing liability shield laws to expire would better enable employees and customers to bring lawsuits based on credible claims. Another concern raised by opponents of COVID-19 liability shield laws is that these laws unreasonably restrict access to the courts.[32] Without such liability shield laws, people have greater freedom to pursue justice through the court system.

One policy concern that favors COVID-19 liability shield laws relates to small businesses. While trying to recover from the COVID-19 pandemic in an unstable economy, small organizations may not have adequate resources to fight employee or customer COVID-19 exposure claims in court, regardless of whether the claims have any merit.[33] However, COVID-19 exposure claims are rare and businesses can take preventative measures to discourage lawsuits.

C. Alternative Solutions

In COVID-19 exposure claims, courts consider the fact that in entering a public business, customers have assumed certain risks, including the potential contraction of the coronavirus.[34] To help prevent frivolous lawsuits, organizations can alert customers up front to the fact that they may be exposed to COVID-19. A wide variety of businesses and other organizations have added disclaimers and liability waivers to their websites to notify customers and guests, including the Cincinnati Symphony Orchestra, the National Museum of the United States Air Force, Airbnb, and the Center of Science and Industry.[35] While these notices may not prevent every lawsuit, they will likely bolster businesses’ arguments that customers assumed the risk of being exposed to COVID-19 by entering a public place. The best way to protect against claims by employees is to ensure that all relevant workplace safety guidelines are followed. These regulations will help prevent workers from being exposed to COVID-19 and will prevent claims of negligence, recklessness, or misconduct. Both solutions can and should be implemented by businesses in states with or without COVID-19 liability shield laws.

IV. Conclusion

Despite the fears raised by many at the onset of the COVID-19 pandemic regarding claims about exposure to the coronavirus, relatively few of these kinds of lawsuits have been filed by customers or employees. Additionally, the COVID-19 liability shield laws designed to prohibit most COVID-19 exposure claims have proven to be unnecessary because of the low numbers of claims and preexisting burdens such as proving exposure in a specific location. Following Ohio’s lead, other states with COVID-19 liability shield laws should not renew them, but rather allow them to expire. Businesses and organizations that are concerned about potential lawsuits based on COVID-19 exposure should notify customers of the risks of exposure to COVID-19 in public places and ensure that all workplace safety guidelines are observed.

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[1] COVID-19: Essential Workers in the States, National Conference of State Legislatures (Jan. 11, 2021), https://www.ncsl.org/research/labor-and-employment/covid-19-essential-workers-in-the-states.aspx#:~:text=Workers%20in%20the%20following%20settings,supply%20stores%20and%20liquor%20stores.

[2] Editors, How to Support Local Restaurants During COVID-19, Cincinnati Magazine (Apr. 7, 2020), https://www.cincinnatimagazine.com/article/how-to-support-local-restaurants-during-covid-19/; Amelia Lucas, Drive-Thru Ordering Surged During the Pandemic. Fast-Food Chains Don’t Think It’s a Fad., CNBC (Mar. 12, 2021), https://www.cnbc.com/2021/03/12/drive-thru-ordering-surged-during-the-pandemic-heres-what-comes-next.html.

[3] Erin Schumaker, Here Are the States That Have Shut Down Nonessential Businesses, ABC News (Apr. 3, 2020), https://abcnews.go.com/Health/states-shut-essential-businesses-map/story?id=69770806.

[4] See Reopening Plans and Mask Mandates for All 50 States, The New York Times (last visited Feb. 3, 2022), https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html.

[5] Nicholas Barry Creel and Jehan El-Jourbagy, Thirty States Have COVID-19 Shield Laws That Businesses Didn’t Need or Want. So Why Pass Them?, The Washington Post (Sept. 16, 2021), https://www.washingtonpost.com/politics/2021/09/16/30-states-have-covid-19-shield-laws-that-businesses-didnt-need-or-want-so-why-pass-them/.

[6] Id.

[7] Chris Marr, Dying Covid Liability Shield Laws Prompt Push for Their Revival, Bloomberg Law (Jan. 27, 2022), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/daily-labor-report/BNA%200000017e-975a-dc6d-a5fe-bf5fde770000?bwid=0000017e-975a-dc6d-a5fe-bf5fde770000.

[8] Am. Sub. H. B. No. 606, https://search-prod.lis.state.oh.us/solarapi/v1/general_assembly_133/bills/hb606/EN/07?format=pdf.

[9] Id. at Section 2.

[10] Id. at Section 2(D)(2).

[11] Id. at Section 2(A).

[12] Id. at Section 2(A)(C).

[13] Id. at Section 3(A)(3).

[14] Chris Marr, Covid-19 Shield Laws Proliferate Even as Liability Suits Do Not, Bloomberg Law (June 8, 2021), https://news.bloomberglaw.com/daily-labor-report/covid-19-shield-laws-proliferate-even-as-liability-suits-do-not.

[15] COVID-19 Complaint Tracker, Hunton Andrews Kurth (last visited Feb. 3, 2022), https://www.huntonak.com/en/covid-19-tracker.html.

[16] Id.

[17] Amanda Bronstad, Lawsuits Filed in 2020 Over COVID-19 Were Diverse, but Limited, New York Law Journal (Dec. 29, 2020), https://www.bloomberglaw.com/document/XDFGFIKC000000?jcsearch=fmf45kmhkd#jcite.

[18] Hunton Andrews Kurth, supra note 16.

[19] Id.

[20] Amanda Bronstad, supra note 19.

[21] Chris Marr, supra note 7.

[22] Nicholas Barry Creel and Jehan El-Jourbagy, supra note 5.

[23] Chris Marr, Florida’s Covid-19 Liability Shield Bill Goes to Governor’s Desk, Bloomberg Law (Mar. 26, 2021), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/true/X3F71C18000000?bna_news_filter=true#jcite.

[24] Chris Marr, supra note 15.

[25] COVID-19 Employment LitWatch, JacksonLewis (last visited Feb. 11, 2022), https://www.jacksonlewis.com/covid19-litwatch; COVID-19 Employment Litigation Tracker and Insights, Fisher Phillips (last visited Feb. 11, 2022), https://www.fisherphillips.com/innovations-center/covid-19-employment-litigation-tracker-and-insights.html; Hunton Andrews Kurth, supra note 16.

[26]JacksonLewis, supra note 27; Fisher Phillips, supra note 27.

[27] Amanda Bronstad, supra note 19.

[28] Paul Dowdell, Immunity from Liability in the Age of COVID-19: A New Reality for Trial Lawyers?, American Bar Association (Aug. 31, 2020), https://www.americanbar.org/groups/litigation/committees/trial-practice/articles/2020/immunity-from-liability-covid-19-trial-lawyers/.

[29] Elaine Povich, States Braced for a Wave of COVID Lawsuits. It Never Arrived, PEW Charitable trusts (July 21, 2021), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2021/07/21/states-braced-for-a-wave-of-covid-lawsuits-it-never-arrived.

[30] Chris Marr, supra note 15.

[31] Id.

[32] Id.

[33] Id.

[34] Nicholas Barry Creel and Jehan El-Jourgaby, supra note 5.

[35] Ticketing Terms & Conditions, Cincinnati Symphony Orchestra (last visited Feb. 11, 2022), https://www.cincinnatisymphony.org/terms-and-conditions/; Visitor Requirements, National Museum of the United States Air Force (last visited Feb. 11, 2022), https://www.nationalmuseum.af.mil/Visit/; Guest Terms 4. Your Responsibilities and Assumption of Risk, Airbnb (last visited Feb. 11, 2022), https://www.airbnb.com/help/article/2908/terms-of-service#4; Stay home if you’re not well or not sure, COSI (last visited Feb. 11, 2022), https://cosi.org/visit.