As states begin to lift COVID-19 lockdowns, many companies face uncertainty as they reopen their doors.
How many of your customers will come back? How many of your employees are coming back?
In addition to these concerns, they may also be wondering about new legal risks that may arise when going back to business. What possible lawsuits could they face from customers and employees who believe they may have become infected on the premises after operations resume?
President Trump and the Meatpacking Order
The last question, about liability risks, has received a lot of attention lately in Washington, and some action has already been taken. The most notable recent example is a move by President Trump on April 28th.
Citing his Defense Production Act (DPA) powers, President Trump issued an executive order requiring meat packers to stay open despite COVID-19 outbreaks in many of them, and told reporters that he was also trying to keep those plants from liability protect when workers should try to sue.
The order has been widely criticized by workers ‘groups arguing that doing so further jeopardizes workers’ safety. And the proposal to grant legal immunity to meat packers has sparked a debate about the president’s powers under the DPA to grant broad legal immunity.
In issuing the order, Trump did not “order” meat packers to stay open or to reopen. Instead, the regulation empowers Agriculture Minister Sonny Perdue to use the powers granted by the DPA to keep processing plants open.
“The idea seems to be that Mr. Perdue could use this authority to instruct a particular meat producer to distribute his product to grocery wholesalers in accordance with their existing contracts – giving those agreements a state-of-the-art glow.” The New York Times reported April 30th.
Trump’s reference to liability protection was apparently in connection with a measure taken on April 26 by the Centers for Disease Control and the health and safety authority. That day the CDC and OSHA gave one “Preliminary Instructions” with specific safety measures, which meat and poultry processing plants were recommended to implement.
The idea is that manufacturers who followed CDC / OSHA standards would likely reduce their liability risks.
The emerging debate in Washington
A little less dramatically, the US Chamber of Commerce and other business organizations have been campaigning for special legal protection for companies for several weeks. In general, while these organizations seek legal protection for businesses, they seem to recognize that comprehensive protection is not realistic – malefactors still have to pay a legal price.
So the question is how do you strike a balance? How can we provide companies with some protection from legal proceedings that could harm or even ruin them, while also serving workers who may not be able to leave the company?
Democratic and Republican lawmakers are working on the next COVID-19-related aid package, and these questions are part of their review. Democrats will press for increased protection for workers. Republicans will be trying to figure out how to legally protect businesses.
Harold H. Kim, President of the Institute for Legal Reform of the US Chamber, has suggested that disease control centers and state guidelines on social distancing and other measures could be used to set a legal boundary. If companies follow the guidelines, they should be immune.
Many entrepreneurs agree that a blanket exception is not realistic and that specific rules should be established to provide guidance to both employers and employees.
Measures that companies can take themselves
“If there is no liability on the part of employers without a set of rules to be followed by employers, it means you have a wild, wild west,” Kent Swig, president of a private real estate investment and development company, said Philadelphia inquirer recently.
Specifically, Swig told the inquirer he plans to create one-way streets in the lobby hallways and Plexiglass partitions between work areas in his property, but added that he was looking for more guidance.
The Washington debate has only just begun, but Harvard Law School professor Noah Feldman has suggested that both sides should immediately consider seriously what a “safe haven” for business might look like. Registered mail Bloomberg news On April 27, Feldman said Congress should instruct the Centers for Disease Control to develop specific rules to keep workers and customers safe while protecting companies from liability.
“That way, companies don’t have to guess what precautions are appropriate,” he wrote. “They will know the rules. As long as they stick to the rules, they are protected from liability. If they break the rules, they have to pay.”