Should employers have ‘Safe Harbor’ against COVID-19 lawsuits?

As businesses begin to return to operations, recalling employees, the Pennsylvania Chamber of Commerce is pushing for what it calls Safe Harbor protections for businesses against COVID-19 related lawsuits.

A coalition of 80 chambers of commerce in the state, including the Greater Lehigh Valley Chamber of Commerce and the Greater Reading Chamber alliance, are supporting the call, which they say will protect the state’s small businesses from “nuisance lawsuits.”

Gene Barr, president and CEO of the Pa. Chamber, said the concern is that a small business can be sued by someone claiming that business is responsible for contracting the COVID-19 virus, even if that business followed all of the CDC guidelines and put forth their best effort to maintain a safe environment.

“Pennsylvania employers have faced unimaginable challenges during this pandemic, the mandatory business shutdown and resulting economic fallout,” he said. “Many now face the threat of unwarranted, opportunistic lawsuits, including hospitals and many healthcare professionals bravely treating patients, companies who have been working to keep our critical supply chains intact, manufacturers producing personal protective equipment and others on the front lines.”

Franck Facchiano, COO and executive vice president of the Greater Lehigh Valley Chamber and one of the supporters of the protections, said the idea is to protect a business that is struggling to get back on its feet from unwarranted lawsuits.

“There is no business plan that involves closing for three months and then coming back at half capacity,” he said.

He said businesses right now are very vulnerable and a lawsuit could break a small business that has done everything possible to offer a safe environment.

“We’re not trying to cover up for any irresponsibility by employers,” Facchiano said. “This is to cover the good employers,” he said.

Jacob Sitman, chair of the employment law and labor relations practice at Fitzpatrick Lentz and Bubba in Allentown, said the proposal does pose some interesting questions.

“Employers do have a duty under OSHA to maintain a workplace from known health and safety risks,” Sitman said.

However, the General Duty clause that would cover such issues as preventing the spread of COVID-19 is vague.

“It is a bit ambiguous. There isn’t a specific list of things an employer can and can’t do,” Sitman said.

He pointed out that even the CDC guidelines are guidelines and not requirements.

Sitman said there are already protections in place for employees. The workers’ compensation system is set up to handle claims against an employer that was negligent.

For a lawsuit an employee would have to prove that an employer was grossly negligent in creating a safe environment.

But, that doesn’t mean an individual couldn’t file a lawsuit, and it’s the chambers’ concern that the cost of fighting such a lawsuit could break a business even if they ultimately win.

Sitman said such a case would be extremely hard to prove.

“You don’t know in most case, or it’s difficult to determine where the virus was contracted,” Sitman said. “You have to be able to assess where you got sick. Even medical professionals are having a difficult time determining how the virus is spread. If we know how this was spread we would be out of the pandemic right now.”

Overall, he said he agrees that small businesses don’t need the added exposure of COVID-19 related lawsuits, especially when they are doing everything they can.

Workers’ Compensation will cover most employees should they contract COVID-19 on the job.

“You’re going to have a small number of employers who won’t do the basic minimum. Existing laws are enough to protect those workers and you don’t want to overburden employers,” he said.

The Pennsylvania Chamber has sent a letter to all of the state’s federal and state representatives making the request to create Safe Harbor protections. To date there has no legislative action on the proposal