As Grievances Stack Up, NY Business Groups Move For COVID Lawsuit Protections

Businesses groups are pressing New York to stymie potential coronavirus infection lawsuits from workers and customers, even as reports pile up that companies are not following the reopening plan.

Companies statewide are navigating under new coronavirus rules aimed preventing infections as New York works through a gradual reopening process, which on Monday included New York City opening up a large swath of its economy. The city, once the epicenter of the nation’s coronavirus crisis, estimates the move could bring up to 300,000 people back to the five boroughs for work.

Aiming to nip potential litigation in the bud, business and tourism interests are urging the state for coronavirus-related liability protections, particularly in situations where a person claims they were infected while at a business location.

The groups say it should not cover companies that flout the rules or act in a grossly negligent way. But they argue companies need some sort of protection, particularly because they are operating in unprecedented times and there are still many unknowns when it comes to the virus. 

“Every retailer, every restaurant, every movie theatre, and every school undertakes some risk by opening their doors,” read a letter from a coalition of business groups, encouraging Gov. Andrew Cuomo to enact the protections.

But workers’ rights groups and legal organizations argue powerful business groups are simply seizing the crisis to push for an expansive liability shield. With the pandemic, protecting employees and customers is a matter of life and death, they argue, and lawsuit immunity would allow companies to escape legal responsibility if they do not reduce unnecessary risks.

“It would be immoral to shield them from irresponsible practices that foster the spread of COVID-19 throughout our communities,” the anti-lawsuit immunity coalition wrote in a letter to the governor last month.

Groups with deep pockets have lined up on both sides of the issue, including organizations that have dished out millions of dollars in political donations over recent years. 

Meanwhile, as the intensity of the coronavirus outbreak has waned in New York, state officials have permitted more industries to reopen by relaxing lockdown measures.

Despite welcomed reopenings, grievances have stacked up. The state has received 25,000 complaints that businesses were violating the reopening plan, Cuomo reported earlier this month.

“We have never received more complaints in a shorter period of time,” he said. “Twenty-five thousand — just think about that. What’s alarming about the 25,000 is the volume.”

“They see the [businesses] violating the rules and they’re saying ‘My health is jeopardized,’” he added. 

Government officials have released a myriad of mandatory guidelines on physical distancing, protective equipment and disinfection for industries that are reopening. In office work for example, mandatory state guidelines order employees to wear face masks when they come within six feet of another person.

As of late, Cuomo has cautioned that businesses must follow the rules, even with low COVID-19 figures. New York’s rules are aimed at preventing the virus’ spread in workplaces as businesses from North Carolina to California are linked to new cases. In New York, Oswego County reported a cluster of COVID-19 cases tied to a food processing facility. Last week, officials reported more than two dozen employees in the county had tested positive for the virus. 

During the coronavirus crisis, there’s been precedent for Cuomo to act through executive order to grant protections for civil liability. In March, as the coronavirus crisis escalated, he handed down an executive order with an immunity clause for doctors and nurses fighting the COVID-19 outbreak.

Later on, he signed into law an immunity clause that covered hospitals and nursing homes, giving them protections from potential lawsuits tied to the crisis. The immunity provision does not cover gross negligence or reckless misconduct, but the language specifies that those definitions do not apply to “decisions resulting from a resource or staffing shortage.”

Nursing homes in New York have recorded thousands of deaths due to the virus and the state’s handling of the issue is the subject of intense scrutiny. The nursing home immunity clause has received criticism and state Sen. Alessandra Biaggi has introduced a bill to repeal the measure.

Now, businesses outside of healthcare are looking for protection of their own. 

Among the industry groups backing that effort is the Real Estate Board of New York, which pumped at least $1.3 million to candidates for state offices in the last four years.

State campaign finance records show they made more than $3 million in overall political donations in that same time period.

Other groups backing lawsuit protections have made political donations during that four-year frame too. That cohort includes the New York State Restaurant Association, The Business Council of New York State and the Associated General Contractors of New York State.

The business council earlier this year sent liability language, which outlined lawsuit protections, to lawmakers’ offices and Cuomo’s office, said Lev Ginsburg, senior director of government affairs at the organization.

“We don’t want that burden of liability shifted to businesses,” he said. 

Many of the potential COVID-19 infection lawsuits wouldn’t have legal legs, he said, arguing that it’d be tough to convince a jury that a person caught the virus at one specific business. But he said it shouldn’t take a wave of those suits to fail in court before lawyers stop taking them on.

But businesses do have fears about COVID liability as they reopen, particularly because there is strong lobbying power from trial lawyers, Ginsburg said.

State campaign finance records show the New York State Trial Lawyers Association has poured at least $3.5 million overall into political donations over the last four years and at least $2 million to candidates for state offices during the same time period.

Edward Steinberg, president of the association, said expanding lawsuit immunity would simply put employees and customers at risk. Some companies, he said, would use it to refuse to provide the most basic needs, like hand sanitizer.

“The immunity shield once given is quite powerful and I think you would find many businesses, again, using that to the detriment of the safety of workers and customers,” he said. 

The New York State AFL-CIO, which has donated hundreds of thousands of dollars to candidates for state office in recent years, is out front against lawsuit protections too.

Mario Cilento, president of the organization, issued a statement saying businesses already have defenses and suggested it would be nearly impossible for a plaintiff to prove which person exposed them to the virus. Plus, he argued that a company following the government guidance would be able to show it met a “duty of care.”

“We have a system of checks and balances for a reason,” he said in the statement. “There is no doubt that some businesses would like nothing more than to check-off responsibility.”