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States braced for a wave of COVID lawsuits. It never arrived

Elaine S. Povich, Stateline.org on

Published in News & Features

In a legislative flurry, 30 states instituted liability protections in late 2020 and early 2021 designed to protect businesses from COVID-19 lawsuits, out of fear that companies would be sued for exposing workers, clients or vendors to the swiftly spreading, deadly disease.

Those lawsuits haven’t materialized.

Proponents of the new laws say that’s because the statutes have scared off potential litigation. But critics say the actions have created a solution in search of a problem, because most employees who sue do so under existing workplace safety regulations, such as those enforced by the federal Occupational Safety and Health Administration, or under union rules.

And because of the nature of COVID-19, including how fast and easily it spreads, pinpointing and proving the exact location where someone got the virus is difficult. Neither OSHA nor most states issued COVID-19 rules for workplaces in the past year, though a few liberal-leaning states did.

The dearth of litigation could stem from all those things.

“The liability shield laws themselves have discouraged plaintiffs’ lawyers from trying to bring suits,” said Torsten Kracht, an attorney with national law firm Hunton Andrews Kurth.

 

His firm mostly represents businesses that have been sued, but it has sometimes represented plaintiffs as well, he said.

“In cases where you have employees who got sick on the job, their recourse is really through workers’ comp claims,” he added. “I think that may be another reason.”

Hunton Andrews Kurth’s COVID-19 “complaint tracker” shows about 200 civil suits have been filed nationwide by workers in 2021 and just 52 have been filed by nonemployees who allege they got COVID-19 in a place of business. The tracker showed 1,700 coronavirus-related civil rights cases and 771 COVID-19 consumer cases over the same time period.

Kracht said isolating where someone contracted COVID-19 is easy only if those people were in a controlled environment such as a cruise ship at sea for more than 14 days.

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