By Mike Ripley, Indiana Chamber vice president of health care and employment law
We’ve heard from many business leaders who are concerned about being sued by an employee, customer or visitor who claims to have contracted COVID-19 at the workplace or as a result of company actions. More and more of these lawsuits are being filed across the country (nearly 150 last month), despite the fact a person could be exposed to the virus at home or anywhere out in public.
These lawsuits could devastate businesses already struggling financially. The threat of litigation could mean some businesses even choose to remain shut, crippling efforts to return the Hoosier economy to as normal a level as possible at this time.
While it appears likely that Congress will address the liability concern later this summer – perhaps as soon as the end of the month – the big question is how far the federal law will go. Our preference – and what we’ve communicated to state officials – is for Indiana to also adopt its own policy on top of that in the 2021 General Assembly to ensure the best protections are in place.
The Indiana Chamber’s Civil Justice Committee is currently finalizing language to propose to the state Legislature that encompasses the following four principles:
- In order to have standing to bring a lawsuit, there must be serious injury or death resulting from COVID-19. Serious injury is defined as an individual who has tested positive, required treatment for physical symptoms and is hospitalized for a minimum number of hours.
- An employer that has made a good faith effort to follow CDC guidelines, as well as state or local ordinances, regarding the COVID-19 pandemic should be entitled to “safe harbor” provisions sheltering them from potential liability.
- Manufacturers, distributors and sellers of medical equipment, products or supplies that were developed and distributed to diagnose, treat or prevent COVID-19 need to have immunity from liability to any user or consumer who claims actual injury as a result of contracting COVID-19.
- For the purposes of worker’s compensation, COVID-19 (or any variation thereof) should be considered an accidental injury in the Indiana worker’s compensation statute.
Nationwide, there have been more than three million confirmed cases of COVID-19. By the end of the pandemic, experts say that most Americans who have been exposed to the virus will only experience flu-like symptoms or be asymptomatic.
Still, with the increasing number of cases, the expectation is that related lawsuits against businesses are going to continue to rise.
Since the employer will be seen as an easy target for a lawsuit, businesses need assurance that as long as they are abiding by the COVID-19 workplace safety guidelines they are immune from such legal action. That will help provide a level of certainty in this unprecedented time and contribute to business and job stability.
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