States, Schools, And Employers Agree Liability Protections Are Necessary For Reopening

State Officials: ‘This Country Is In Need Of A Common-Sense Framework To Provide Liability Protections For Much-Needed Goods And Services While Still Ensuring Victims Are Able To Seek Legal Redress And Compensation Where Appropriate’

21 GOVERNORS: “As Congress debates a potential phase four bill, we ask that you take action to provide common sense civil liability protections to health care workers, businesses, and schools. When Americans take sensible steps to implement public health best practices, they should have confidence that they will be secure from unreasonable claims…. To accelerate reopening our economies as quickly and as safely as possible, we must allow citizens to get back to their livelihoods and make a living for their families without the threat of frivolous lawsuits. As public policymakers, it is our duty to provide clarity, consistency, and stability to our citizens and their businesses, and the uniformity that federal law provides is critical to America’s industries that work across state lines.” (21 Governors, Letter to Speaker Pelosi, Rep. McCarthy, and Sens. McConnell and Schumer, 7/21/2020)

• “Liability protections must be predictable, timely, targeted, and shield employers from legal risk when following the appropriate standard of care to protect employees, customers, and students. To be clear, liability protections are not a license for gross negligence, misconduct, or recklessness.” (21 Governors, Letter to Speaker Pelosi, Rep. McCarthy, and Sens. McConnell and Schumer, 7/21/2020)

• Letter signed by: Indiana Gov. Eric Holcomb, Alabama Gov. Kay Ivey, Alaska Gov. Mike Dunleavy, Arizona Gov. Doug Ducey, Arkansas Gov. Asa Hutchinson, Idaho Gov. Brad Little, Iowa Gov. Kim Reynolds, Maryland Gov. Larry Hogan, Mississippi Gov. Tate Reeves, Missouri Gov. Mike Parson, Nebraska Gov. Pete Ricketts, New Hampshire Gov. Chris Sununu, North Dakota Gov. Doug Burgum, Ohio Gov. Mike DeWine, Oklahoma Gov. Kevin Stitt, South Carolina Gov. Henry McMaster, Tennessee Gov. Bill Lee, Texas Gov. Greg Abbott, Utah Gov. Gary Herbert, West Virginia Gov. Jim Justice, and Wyoming Gov. Mark Gordon.

21 STATE ATTORNEYS GENERAL: “As we reopen our economies, the need for a stable, predictable legal environment has never been greater. The COVID-19 pandemic is likely to create a surge in civil litigation targeting well-intentioned businesses for taking pandemic mitigation measures; therefore, this country is in need of a common-sense framework to provide liability protections for much-needed goods and services while still ensuring victims are able to seek legal redress and compensation where appropriate.” (21 Attorneys General, Letter to Sens. Graham, McConnell, Feinstein, and Schumer, 5/11/2020)

• “The undersigned state Attorneys General, representing 21 states, are joining together to urge Congress… to enact specific liability protections that help mitigate the threat of frivolous COVID-related litigation and address pandemic protections that are not currently covered in federal law…  Civil liability protections should not, however, be extended to businesses engaging in willful misconduct, reckless infliction of harm or intentional infliction of harm. We believe criminal penalties, regulatory fines and agency oversight should be able to capture bad actors and civil lawsuits should be available for any citizens hurt by a business or individual acting with disregard for safety during the COVID-19 pandemic.” (21 Attorneys General, Letter to Sens. Graham, McConnell, Feinstein, and Schumer, 5/11/2020)

• Letter signed by: Christopher M. Carr, Georgia Attorney General; Steve Marshall, Alabama Attorney General; Kevin G. Clarkson, Alaska Attorney General; Leslie Rutledge, Arkansas Attorney General; Ashley Moody, Florida Attorney General; Lawrence G. Wasden, Idaho Attorney General; Curtis T. Hill, Jr., Indiana Attorney General; Derek Schmidt, Kansas Attorney General; Daniel Cameron, Kentucky Attorney General; Jeff Landry, Louisiana Attorney General; Lynn Fitch, Mississippi Attorney General; Eric S. Schmitt, Missouri Attorney General; Douglas Peterson, Nebraska Attorney General; Wayne Stenehjem, North Dakota Attorney General; David Yost, Ohio Attorney General; Alan Wilson, South Carolina Attorney General; Jason R. Ravnsborg, South Dakota Attorney General; Herbert H. Slatery III, Tennessee Attorney General; Ken Paxton Texas Attorney General; Sean Reyes, Utah Attorney General; Patrick Morrisey, West Virginia Attorney General

FLORIDA CHIEF FINANCIAL OFFICER JIMMY PATRONIS: “Since COVID-19 impacted our state and nation, I have held over 20 meetings with Chambers across Florida and have served on Governor Ron DeSantis’s Re-Open Florida Taskforce. It’s clear from the boots on the ground that if we hope to fully recover from this pandemic, we’ll need to provide legal protections to a whole host of organizations who continue to work to protect their employees and customers so our communities can get back to normal. As the state’s Chief Financial Officer (CFO) and a former small business owner, I am concerned about, and have been advocating for protections for private businesses, and I also believe we must have protections in place for our non-profit institutions.” (Jimmy Patronis, Op-Ed, Florida Daily, 7/29/2020)

• “While Congress deliberates the extent of liability protections, I ask that you provide special consideration regarding America’s 1.3 million non-profit organizations, as they will face potential liabilities related to COVID-19. As you know, non-profit entities are critical when it comes to providing countless services and resources for communities. From raising money for cancer research, to helping families with medical bills, to spaying and neutering pets, and everything in between, we can’t allow our non-profits to fail under the weight of a monsoon of lawsuits.” (Jimmy Patronis, Op-Ed, Florida Daily, 7/29/2020)

Businesses ‘Are Concerned That, Despite Doing Their Best To Follow Applicable Guidelines, They Will Be Forced To Defend Against An Onslaught Of Frivolous Lawsuits. The Prospect Of Such Litigation And Associated Exorbitant Legal Costs Are A Deterrent To Reopening.’

U.S. CHAMBER OF COMMERCE AND 250 BUSINESS ORGANIZATIONS: “The undersigned organizations urge you to quickly enact temporary and targeted liability relief legislation related to the COVID-19 pandemic. These crucial protections should safeguard businesses, non-profit organizations, and educational institutions, as well as healthcare providers and facilities from unfair lawsuits so that they can continue to contribute to a safe and effective recovery from this pandemic.” (U.S. Chamber of Commerce and 250 Business Organizations, Letter to Members of the United States Congress, 5/27/2020)

• “[O]ur members and constituencies are concerned that, despite doing their best to follow applicable guidelines, they will be forced to defend against an onslaught of frivolous lawsuits. The prospect of such litigation and associated exorbitant legal costs are a deterrent to reopening. Further, this litigation could devastate those entities that are just beginning to reopen their doors or have kept them open throughout the crisis. Indeed, past surveys have shown that many small businesses are one lawsuit away from closing for good.” (U.S. Chamber of Commerce and 250 Business Organizations, Letter to Members of the United States Congress, 5/27/2020)

• “The need for liability protections and relief is clear. Several governors and state legislatures have already implemented COVID-19-related liability protections for key sectors in their states, but a uniform national response is necessary. Now is the time for Congress to take strong action to stop a growing wave of lawsuits from getting in the way of what we all want and need: healthy citizens and a strong economy.” (U.S. Chamber of Commerce and 250 Business Organizations, Letter to Members of the United States Congress, 5/27/2020)

117 NATIONAL, STATE, AND REGIONAL BUSINESS ASSOCIATIONS: “As customer-centric industries whose employees interact with the general public in physical locations on a constant basis, we write in support of Congressional efforts to create a targeted and limited safe harbor from liability for companies that implement federal public health guidelines related to the transmission of COVID-19. Many of our member companies are providing necessary goods, services and opportunities for Americans to return to work, and have taken extraordinary measures to protect the safety and well-being of our guests and employees while following government health guidelines in good faith. We fear that without Congressional action, the threat of litigation –even for those companies that have followed federal public guidelines, but employees or customers still contract COVID-19 due to the extremely contagious nature of the virus –will mire our recovery and negatively impact the economy writ large by injecting great uncertainty and risk into the ability of our businesses to operate during the pandemic.” (117 Business Associations, Letter to Speaker Pelosi, Rep. McCarthy, and Sens. McConnell and Schumer, 5/11/2020)

• “Evolving information about COVID-19 and differences in federal, state, and local guidelines, however, have created legal uncertainty. As a result, companies that diligently implement safety protocols and rely in good faith on public health recommendations and guidelines nonetheless face the prospect of substantial litigation based on virus transmission. These suits do nothing to reduce transmission of COVID-19 but threaten the ability of companies to provide much-needed services and opportunities for Americans to return to work. Consumer-facing businesses should be able to rely on the safety guidelines and reopening parameters issued by experts without the threat of liability for following that guidance.” (117 Business Associations, Letter to Speaker Pelosi, Rep. McCarthy, and Sens. McConnell and Schumer, 5/11/2020)

“Industry groups that represent restaurants, retail, travel, tourism, hotels and other businesses are calling for Congress to provide a liability shield for businesses once the economy reopens. The groups, including the U.S. Travel Association, the National Restaurant Association, the National Retail Federation, the American Hotel and Lodging Association, Airlines for America and the American Gaming Association, sent a letter to congressional leadership on Monday urging liability protections in the next coronavirus relief bill.” (“Restaurant, Travel, Retail Industries Call For Liability Shield For Businesses,” The Hill, 5/11/2020)

School Districts: ‘Lack Of Temporary And Limited Immunity To Our Exposure To Liability Claims Is An Issue So Significant That It May Actually Prevent Our Ability To Reopen Schools With In-Person And Classroom-Based Instruction’

“As Kentucky’s school districts explore options to continue instruction this fall, their leaders are pushing for liability protections that would safeguard them from civil lawsuits resulting from inevitable COVID-19 cases among students and staff. The topic was a discussion item during an online meeting of the Green River Regional Educational Cooperative on Wednesday. Kentucky Association of School Superintendents Executive Director Jim Flynn said support is building for the request.” (“School Superintendents Talk Liability Protections Amid Pandemic,” Bowling Green [KY] Daily News, 6/04/2020)

• “Wayne Young, former executive director of the Kentucky Association of School Administrators, also reassured the group of regional school superintendents during the meeting Wednesday…. Young described the anxieties school district leaders feel as they sift through a veritable avalanche of state and federal guidance that continues to shift under their feet.” (“School Superintendents Talk Liability Protections Amid Pandemic,” Bowling Green [KY] Daily News, 6/04/2020)

16 CALIFORNIA EDUCATION AGENCIES, SCHOOL DISTRICTS, AND ASSOCIATIONS: “On behalf of the California local educational agencies (LEAs) and statewide education associations that are represented on this letter, we are writing to request that you enact temporary and targeted liability relief legislation related to the COVID-19 pandemic. Because opening schools will be crucial to safely and efficiently reopen the economy, it is imperative school districts are afforded protection from unfair lawsuits, so they can move forward in providing high-quality instruction for their students and safe facilities for their communities.” (16 California Education Agencies, School Districts, and Associations, Letter to Sens. McConnell and Schumer, Speaker Pelosi, and Rep. McCarthy, 7/8/2020)

• “Due to the potential impacts of frivolous lawsuits on school districts’ budgets, it is critically important that lawmakers realize the financial burden that school districts would likely face without some protections—and that these expenses impact the quality of education offered to all students at the end of the day. Lack of temporary and limited immunity to our exposure to liability claims is an issue so significant that it may actually prevent our ability to reopen schools with in-person and classroom-based instruction until a proven vaccine is produced and available to the public.” (16 California Education Agencies, School Districts, and Associations, Letter to Sens. McConnell and Schumer, Speaker Pelosi, and Rep. McCarthy, 7/8/2020)

• “As Congress moves forward in its efforts to enact temporary liability protections against COVID-19 exposure claims for employers that work to follow applicable public health guidelines, it is imperative that public school systems and educational institutions be included in such protections.” (16 California Education Agencies, School Districts, and Associations, Letter to Sens. McConnell and Schumer, Speaker Pelosi, and Rep. McCarthy, 7/8/2020)

Former West Des Moines School Board President Melinda Dunnwald: “Just as our government and health care professionals are taking steps to combat the virus, we need to make common-sense preparations now for returning our children and educators to their buildings and learning environments — while shielding school districts, educators, families, and taxpayers from frivolous lawsuits related to the coronavirus. This should be a top priority. I am hopeful that members of Congress are trying to work together to get this protection done. Otherwise, it will further prevent our school districts from returning to ‘normal’ and our children will continue to pay the biggest price.” (Melinda Dunnwald, “Students, Teachers, Families And Administrators Want To Return To Learn. Here’s How Congress Can Work Together To Help.,” Des Moines Register, 7/31/2020)

• “Under a new proposal that can be included in the next coronavirus relief package, school districts, educators, students, families, and caregivers would temporarily be offered legal protections for when someone exposed to the virus files a lawsuit. Yes, our educational institutions must make proper efforts to protect students from being exposed and comply with public health guidelines. If they don’t, they should pay a price for negligence. But if we don’t provide some certainty to our places of learning working hard to comply with these guidelines, it could create legal nightmares for years to come.” (Melinda Dunnwald, “Students, Teachers, Families And Administrators Want To Return To Learn. Here’s How Congress Can Work Together To Help.,” Des Moines Register, 7/31/2020)

Education Groups: ‘Schools Must Have Protection From Unfair Lawsuits,’ Colleges And Universities ‘Are Facing Enormous Uncertainty About COVID-19-Related Standards Of Care And Corresponding Fears Of Huge Transactional Costs Associated With Defending Against COVID-19 Spread Lawsuits’

“Business and education groups, including the School Superintendents Association, have urged Congress to pass new legal protections and ease the risk of lawsuits as schools and businesses weigh whether to reopen.” (“Senate GOP Aims To Funnel Covid Liability Cases To Federal Courts,” The Wall Street Journal, 7/16/2020)

“Colleges and universities are making their own push for liability protections ... The American Council on Education, the Association of American Universities and dozens of other higher education groups sent a letter to lawmakers on Thursday expressing ‘fears of huge transactional costs associated with defending against COVID-19 spread lawsuits’ without more legal protections.” (“Colleges Ask For Liability Protections,” Politico Influence, 5/28/2020)

AMERICAN COUNCIL ON EDUCATION AND 75 OTHER HIGHER EDUCATION ASSOCIATIONS: “On behalf of the American Council on Education and the undersigned higher education associations, I am writing today to urge you to quickly enact temporary and targeted liability protections related to the COVID-19 pandemic. While these crucial protections are likely necessary for many sectors of the American economy, this letter focuses on the need to safeguard higher education institutions and systems, affiliated nonprofits, and healthcare providers and facilities from excessive and speculative lawsuits arising out of the pandemic.” (American Council on Education and 75 Higher Education Associations, Letter to Speaker Pelosi, Rep. McCarthy, and Sens. McConnell and Schumer, 5/28/2020)

• “But as colleges and universities assess how quickly and completely campuses can resume full operations, they are facing enormous uncertainty about COVID-19-related standards of care and corresponding fears of huge transactional costs associated with defending against COVID-19 spread lawsuits, even when they have done everything within their power to keep students, employees, and visitors safe. To blunt the chilling effect this will have on otherwise reasonable decision-making leading to our nation’s campuses resuming operations in a safe and sensible manner, we ask that Congress quickly enact temporary COVID-19-related liability protections for higher education institutions and systems, affiliated entities, as well as their faculty, staff and volunteers. These protections should be conditioned on following applicable public health standards, and they should preserve recourse for those harmed by truly bad actors who engage in egregious misconduct. … Higher education’s need for temporary and targeted liability protections and relief is clear. Now is the time for Congress to act.” (American Council on Education and 75 Higher Education Associations, Letter to Speaker Pelosi, Rep. McCarthy, and Sens. McConnell and Schumer, 5/28/2020)

THE SCHOOL SUPERINTENDENTS ASSOCIATION, ASSOCIATION OF EDUCATIONAL SERVICE AGENCIES, AND THE NATIONAL SCHOOL BOARDS ASSOCIATION: “The undersigned organizations, representing the nation’s public school leaders, urge you to quickly enact temporary and targeted liability relief legislation related to the COVID-19 pandemic. Such protections will be critical to businesses, non-profit organizations, and healthcare providers and facilities, as we work to recover from this pandemic. Because opening schools will be crucial to safely and efficiently reopen the economy, it is imperative school districts are afforded the same legal safeguard. Schools must have protection from unfair lawsuits, so they can move forward in providing high-quality instruction for their students and safe facilities for their communities.” (The School Superintendents Association, Association of Educational Service Agencies, and the National School Boards Association, Letter to Sens. McConnell and Schumer, Speaker Pelosi, and Rep. McCarthy, 7/8/2020)

• “As Congress moves forward in its efforts to enact temporary liability protections against COVID-19 exposure claims for employers that work to follow applicable public health guidelines, it is imperative that public school systems and educational institutions be included in such protections. We believe any protections should be limited in scope and preserve recourse for those harmed by truly bad actors who engage in egregious misconduct. … As the federal government continues to assist states and local governments with COVID-19 recovery, liability protections during this pandemic will help our schools reopen safely, implement the necessary protocols to protect our students and staff, and mitigate additional losses.” (The School Superintendents Association, Association of Educational Service Agencies, and the National School Boards Association, Letter to Sens. McConnell and Schumer, Speaker Pelosi, and Rep. McCarthy, 7/8/2020)

Some Democrats Have Said They Are Interested In Finding Common Ground On Liability Protections

“Sen. Joe Manchin (D-W.Va.) says he would support liability protection for small, privately owned businesses. ‘These smaller businesses we have to be very careful how we protect them,’ he said. Asked if small businesses should get liability protection, Manchin said: ‘I’m looking at that.’ ‘If I can help smaller businesses, I will,’ he added.” (“Democratic Unity Starts To Crack In Coronavirus Liability Reform Fight,” The Hill, 5/27/2020)

SEN. CHRIS COONS (D-DE): “I don’t support a path forward where we don’t offer clear regulatory guidance and don’t offer liability protection for workers.” (“Democratic Unity Starts To Crack In Coronavirus Liability Reform Fight,” The Hill, 5/27/2020)

• SEN. COONS: “There seems to be a broad bipartisan agreement that our laws shouldn’t treat responsible and irresponsible employers the same.” (“Democratic Unity Starts To Crack In Coronavirus Liability Reform Fight,” The Hill, 5/27/2020)

SEN. DOUG JONES (D-AL): “We got to have a balance on some things. I’m not going to give a blank check and blanket immunity to somebody. At the same time, I think we have to be very careful in protecting businesses…. I think we can find an appropriate balance if it doesn’t get into partisan politics. I hope we can figure it out.” (“Democratic Unity Starts To Crack In Coronavirus Liability Reform Fight,” The Hill, 5/27/2020)

“Sen. Tom Carper (D-Del.) … said liability reform is ‘an issue that interests me.’ ‘In the earlier days on class-action reform and asbestos litigation reform, which are first cousins to this issue, I was always interested in seeing if there’s a principled middle ground, and I’m sure my staff and I will be involved,’ he said.” (“Democratic Unity Starts To Crack In Coronavirus Liability Reform Fight,” The Hill, 5/27/2020)

But Sen. Schumer Was Called Out For Misrepresenting The Republican Liability Protection Proposal

POLITIFACT: “Schumer said of a Republican coronavirus relief bill, ‘You know what’s in this bill? No medical malpractice suits until 2024, even if they’re not COVID related.’ Schumer was imprecise and inaccurate describing a provision in the bill. Despite what Schumer said, the bill does not prohibit the filing of medical malpractice lawsuits. It does set strict standards that must be met for a case to succeed. The standards also could restrict the number of cases filed, experts said…. We rate [Schumer’s statement] Mostly False.” (“Fact-Checking Chuck Schumer’s Claim That Republican Bill Says ‘No Medical Malpractice Suits,’” Politifact, 8/03/2020)

• “What Schumer said was ‘in the bill’ is not actually in the bill. The bill does not explicitly ban the filing of lawsuits until 2024.” (“Fact-Checking Chuck Schumer’s Claim That Republican Bill Says ‘No Medical Malpractice Suits,’” Politifact, 8/03/2020)