Jonathan D. Urick, U.S. Chamber Litigation Center
This week’s reporting and commentary on COVID-19 litigation focused on the prospects of a litigious summer, the risks of liability waivers, and disputes over business-interruption insurance coverage.
Signs of a Litigious Summer
According to JD Supra’s latest weekly update on COVID-19-related litigation, shutdown challenges “show no signs of slowing down, and it seems probable that more will follow as some states reverse reopening plans in response to coronavirus outbreaks.” What’s more, reopening businesses are struggling “to decide how to protect customers and employees with little in the way of consistent guidance and the prospect of liability protection stuck in Congress. All signs are thus pointing to a litigious summer.”
Indeed, the Wall Street Journal reports that, on Monday, Las Vegas hospitality workers sued casino operators, accusing the companies of failing to protect employees from COVID-19. According to the Journal, this lawsuit is “one of the first efforts to hold employers legally responsible for infections.”
Calls for lawsuit protections unsurprisingly continue. An editorial in the Washington Post argues that coronavirus liability protections should also include colleges and universities, “[g]iven the importance of higher education, and the economic pressures it faces.” The editorial board urges states to “shield schools making good-faith, scientifically sound safety efforts” from lawsuits, and accordingly suggests that “Congress could encourage” such state legislation “by conditioning aid to the states on it during the next economic stimulus package.”
Liability Waivers
Inc. magazine cautions reopening businesses about the potential risks of requiring employees to sign a liability waiver before returning to work. Some attorneys interviewed for the article opined that the potential benefits of a waiver likely aren’t worth the legal risks. Another expert advised that “employers take a proactive approach to educating employees, frequently updating them on changing policies the best you can, and keep them involved in the reopening process.”
Business Insurance likewise warns that COVID-19 liability waivers may not “absolve [reopening businesses] of all liability” because such waivers are “untested in the courts” and, as a result, it remains unclear whether and to what extent courts will enforce them. According to legal experts interviewed for the article, enforceability “will vary depending on state law, as well as the language of the releases.” The experts cautioned that “the language of the agreement has to be clear, the individual must have understood and consented to the waiver, and the agreement can’t waive liability for willful misconduct or gross negligence.”
Disputes Over Business-Interruption Insurance Coverage
Finally, the Wall Street Journal examines the growing wave of lawsuits by “restaurateurs, retailers and others hurt by pandemic shutdowns . . . to force their insurers to cover billions in business losses.” “Hundreds of lawsuits have been filed,” the Journal reports, “and lawyers anticipate many more.” According to the article, this litigation is shaping up as “[o]ne of the biggest legal fights in the history of insurance.”
