Reasonable protections from COVID-19 lawsuits needed for businesses

For the wellbeing of our state in the wake of the COVID-19 pandemic, we need Arkansas businesses to provide goods, services, and jobs. We have already seen the economic devastation that occurs when businesses have to stay closed and lay off employees.

But Arkansas businesses are concerned about opening and providing goods and services for fear that they will face lawsuits claiming that someone contracted COVID-19 on their premises or from their employees. The same concern exists for our healthcare providers in the state. Those businesses and providers need reasonable protections against such lawsuits. Otherwise, our economy will struggle and jobs will be lost.

To that end, on May 5th of this year, the Arkansas State Chamber, along with dozens of other businesses and business interests, sent the Governor a letter requesting one or more executive orders designed to provide such protections. That letter further asks for a special legislative session designed to adopt laws providing similar protections.

The threat of such lawsuits is all too real. The Washington Post reported last month that nearly 800 COVID-19-related lawsuits had been filed nationwide by the end of April. That number is increasing exponentially. A COVID-19 Complaint Tracker maintained by the Hunton Andrews Kurth law firm shows 2,700 lawsuits filed across the country as of June 12. That number includes several complaints filed in Arkansas, and those numbers will likely increase over time. Arkansas businesses therefore reasonably fear that staying open or reopening might expose them to lawsuits based on allegations that someone caught COVID-19 on their premises.

Businesses around the country share these concerns and have taken steps to obtain reasonable protections against COVID-19 lawsuits. Congress is considering legislation on the issue, but it is unknown if it will come to pass. As a result, states are acting and, as of this date, approximately 30 states have adopted some sort of lawsuit protections measures, whether it be by executive order, statute or both.

Naturally, there are those that oppose such measures, or question the need. Attorneys may tell you that it will be very difficult for a plaintiff to prove he/she contracted COVID-19 at a particular business, or from a particular healthcare provider. While that may be true in many cases, the litigation process by which a plaintiff attempts to prove that case can often take years and cost tens of thousands of dollars. Businesses, especially small businesses, can hardly withstand one or two such lawsuits.

The reality is that we know little about COVID-19, how it spreads and how to prevent that spread. As a result, a business can do everything in its power and follow all the relevant guidance in operating, but COVID-19 can still be contracted. To be threatened by lawsuits in that environment is simply not a sustainable situation for our economy.

Our request is not for unlimited immunity for an unlimited amount of time. Moreover, we don’t believe that businesses that act recklessly, such as ignoring directives and guidelines, should enjoy any such protection. To the contrary, only those that make good faith efforts to protect consumers and patients should be entitled and we expect any possible executive order or legislation will make that clear. Simply put, we want to incentivize businesses to do the right thing.

Our request for reasonable protections remains on the table. During this uncertain time, when businesses are doing everything they can to reopen their doors safely and responsibly, they need assurance that they are protected from meritless litigation so long as they act reasonably. And all of us should want to protect people who act reasonably while providing needed services to our communities and providing jobs.

Editor’s note: Randy Zook is the CEO of the Arkansas State Chamber of Commerce and Associated Industries of Arkansas. The opinions expressed are those of the author.