Protect Responsible Main Street Businesses From Coronavirus Liability

NACS, associations seek protections for retailers that provided essential services during the pandemic. 

June 23, 2020

By Henry O. Armour, Greg Ferrara and B. Douglas Hoey

WASHINGTON—When America’s states and cities instituted stay-at-home orders to stop the spread of the coronavirus, certain industries were asked to stay open to meet the essential needs of the public.

The Department of Homeland Security, for example, wrote that businesses recognized as part of the nation’s critical infrastructure had “a special responsibility to maintain your normal work schedule.”

These businesses and their employees rose to the challenge. They continued providing the public with access to food, water, medication, fuel, and other essential goods and services, despite some of the most challenging working conditions in the nation’s history.

Businesses made significant, logistically difficult, and costly changes to daily operations. This included implementing extensive virus mitigation protocols, such as enhanced cleaning and sanitation and social distancing measures to protect their employees, customers, and others from exposure. Additionally, businesses tried to comply with the evolving local, state, and federal guidance for workplace safety.

Now, essential businesses, many of which are small, independent businesses, could be penalized for remaining open.

Customers who contract the coronavirus could conceivably file lawsuits, accusing even the most cautious business owners of inadequately protecting them. Small businesses, already struggling financially, could be forced to close their doors for good due to the cost of fighting unfair lawsuits, even if they end up winning in court.

The Centers for Disease Control and Prevention has stated that COVID-19 has achieved “community spread” in many locations across the country. “Community spread” means the spread of an illness for which the source of the infection is unknown. And the unknown source of a coronavirus infection leaves businesses that have remained open vulnerable to claims that their place of business was the origin point. This could make it very challenging, time-consuming, and expensive for businesses to defend themselves against such claims.

The uncertainties and compliance challenges leave room for efforts by some to take advantage of the current crisis by filing unfounded lawsuits against the businesses that were encouraged to stay open. Already, more than 2,000 coronavirus lawsuits have been filed, and that number is rising quickly.

To be clear, there should be no protection for bad actors. Businesses that willfully ignore the risks of the spread of COVID-19 and behave with negligence should be subject to litigation. But businesses that have taken appropriate health and safety precautions need protection from the potentially crippling cost of defending cases that will be exceedingly difficult to prove or disprove.

No one is looking for blanket immunity that would allow bad actors to put the safety of workers and customers at risk. We simply seek protection for those businesses who are doing what they can to protect against exposure to the virus.

Given the very real threat of expensive and difficult-to-prove lawsuits against essential employers, Congress must support liability protection for businesses in the next coronavirus-related bill. Without these protections, unwarranted lawsuits could cause many Main Street businesses to close their doors for good, which would result in employees losing their jobs and communities being deprived of access to the goods and services they depend on.

Henry O. Armour is the president and CEO of the National Association of Convenience Stores. Greg Ferrara is president and CEO of the National Grocers Association. B. Douglas Hoey, MBA, is CEO of the National Community Pharmacists Association.

This op-ed originally appeared in the Washington Examiner.