Liability policy should make businesses a part of the COVID-19 solution, not excuse them

In its recent interim report, the Arkansas Economic Recovery Task Force cited the need for liability protection for businesses from COVID-19-related lawsuits. The report indicated that members of the task force had “raised uncertainty from potential legal liability arising from COVID-19 as a significant factor to restoring Arkansas’s economy.”

The report arrived on the heels of a letter from most of the Arkansas Senate’s Republican members requesting an executive order and a special session to adopt legislation providing immunity to businesses from claims involving contraction of COVID-19. If legislation were passed, Arkansas would join at least four other states that have passed laws granting businesses immunity from civil liability for claims relating to COVID-19, except for cases in which there is gross negligence, recklessness, or intentionally harmful conduct.

Legal scholars have noted that establishing causation — that a particular business’s negligence actually caused the infection — is a tremendous hurdle given the uncertainty about many aspects of the COVID-19 infection, testing efficacy, and the complexity of disease transmission. Some have pointed to assumption of risk as an available defense for businesses, which would bar recovery for patrons who appreciated the well-known dangers of contracting the illness and yet voluntarily accepted them. An open question is the role of general liability insurance and whether insurers currently exclude or should be permitted to exclude coverage for loss due to infectious disease outbreaks.

During a public health crisis, we need all (sanitized) hands on deck. Much of the focus to date has been on the government response through public health directives and executive orders. Most of these actions have been restrictions or outright bans on certain activities, such as bans on gatherings of more than a specified number of people. Some of it has been through suggestive advice, such as guidance on social distancing and masks.

Individual and institutional policy can either reinforce the government’s public health response or derail it. For example, I have my own policy to wash my hands before I leave the restroom in an effort to prevent spread of infection, but I could decide — as some unfortunately do — that my potential infection of others is not my concern. Similarly, some businesses have voluntarily instituted policies requiring patrons to wear face coverings as a condition of entry during the pandemic, but others may decide that such policies are inconsistent with business interests or that enforcement is not worth the effort.

Although some states have mandated face coverings for customers at essential businesses, Arkansas is unlikely to take such an approach. The shunning of voluntary facial coverings in many public settings, as consistently recommended by our state’s leaders, is a visible warning signal. This virus is just as infectious, just as deadly, and more present in our communities than ever before.

Short of outright mandates, however, governmental policy can nudge individuals and businesses into behaviors that support public health. A spectrum of policy levers can advance public health goals and achieve better adherence to evidence-based guidance, safeguard our citizens, and ensure our economic recovery.

What we should avoid, though, are policies that nudge people in the wrong direction. Some policymakers have cautioned that far-reaching immunity for businesses may remove incentives for them to take even reasonable precautions to prevent the spread of COVID-19 among patrons and by patrons to their employees. Businesses are a vital part of the public health response, and they need to feel the responsibility to contribute to minimizing spread of the infection.

This can be achieved by providing safe harbors for businesses if they follow evidence-based guidelines and adopt appropriate protocols. Compliance with public health guidelines on COVID-19 as a safe harbor should create a presumption that the business acted with reasonable care. This approach reinforces public health goals and places businesses on a more level playing field as they fulfill a critical role in combatting the spread of COVID-19 in our communities.

Editor’s note: Craig Wilson, JD, MPA, is the director of health policy for the Arkansas Center for Health Improvement, an independent, nonpartisan health policy center in Little Rock. The opinions expressed are those of the author.