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Businesses need safe harbor during the storm of a lifetime

You are probably as tired reading about COVID-19 as you are having to live in a world where we need to think about it every day.

The pandemic has caused thousands of infections and the statewide shutdown order has cost hundreds of thousands of jobs in Wisconsin. It was only contractors’ decades of sound safety practices that prevented construction from being deemed as unessential as dentists, restaurants and hair salons. Even though the construction industry in Wisconsin was deemed essential, it was not unaffected; concerns about everything from having to take a morning temperature to eliminating group lunches were added to the ever present – but bigger worry – about how the shutdown will affect the next job.

Finally we’re starting to see big and small businesses in other parts of Wisconsin’s economy are reopening, but the road to recovery is uncertain. As we plan for the needed steps to restart Wisconsin’s economy, it is vitally important that employers are able to place a priority on providing for their customers and making payroll rather than worrying about lawsuits. Even employers that follow federal, state, or local public health orders and recommendations can still be vulnerable to lawsuits alleging a business owner exposed a person to COVID-19. You may have already seen the TV and internet ads trying to recruit plaintiffs for cases related to COVID-19. In a flashback of the McDonald’s hot-coffee case, at least one lawsuit has already been filed against the manufacturer of Purell hand sanitizer alleging that its claim that the sanitizer kills 99.9 percent of germs is misleading. The solution should include:

• Premises Liability Safe Harbor: Protections against frivolous lawsuits alleging a plaintiff was infected with COVID-19 on a specific premise for all property owners and occupants who are good actors. This sort of coverage is not business community specific and would provide protection to homeowners, government entities – including schools and universities – and any other premises used for outdoor events and festivals. The safe harbor would not protect bad actors. An entity should lose the liability exemption if it knowingly violated a public health order or spread COVID-19 by acting in a reckless, wanton or intentional manner.

• Limitation on Recovery from No-Injury Lawsuits: First, plaintiffs cannot recover if they have not been diagnosed as having COVID-19. Second, even if plaintiffs are diagnosed, they cannot recover damages if they are asymptomatic or have mild symptoms. Again, these protections should not protect bad actors. The limitation should not apply in cases where another’s act or omission that caused exposure involved reckless, wanton or intentional misconduct.

• Employee Testing: Employers should be allowed to test prospective or current employees for COVID-19 without incurring legal liability. Further, employers should be allowed to refuse to hire a prospective employee who tests positive for COVID-19 or refuses to submit a test. Finally, employers should be allowed to require employees to take leave until they either submit to a COVID-19 test, show the negative results of a test, or until they no longer test positive for COVID-19.

This is not about defending employers who recklessly or intentionally cause harm. This is about helping employers that are already struggling to stay in business and are faced with the very real threat of frivolous lawsuits that will push their employees out of their jobs and seriously undermine work to restart and rebuild the economy. The goal is to provide safe harbor for businesses that are doing their level best to keep their employees and the public safe from being sued by someone who allegedly contracted COVID-19 at their place of business even if they never got sick.

The government has provided safe harbor in extraordinary times before. As the nation prepared for Y2K, Congress passed a three-year ban on lawsuits over economic losses from related glitches. After the 9/11 attacks, a $38 billion victim-compensation fund was set up to eliminate punitive damages and protect airlines against liability for exceeding their insurance coverage for related claims. Already this year, Wisconsin Democrats and Republicans have come together to help prevent lawsuits against companies that donate PPE equipment to health-care workers fighting COVID-19 on the front lines. These were important first steps, but all Wisconsin employers need reasonable safe-harbor protection from liability to serve the public to meet payroll while taking commonsense measures to protect employees and the public.

Either the state or federal government should act quickly and pass these temporary, targeted measures intended to protect businesses that are doing the right thing and will help stabilize the economy so the recovery can continue. We don’t want an “Open for Business” sign to mean “open season” on employers who are trying to do the right thing by restarting and rebuilding the state’s economy. Employers have enough to worry about.

– John Schulze is ABC of Wisconsin Director of Legal and Government Affairs

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