The scope and expected duration of COVID-19 seem continually to expand.
Healthcare workers, businesses and individuals are taking extraordinary measures as the nation unites to combat its common enemy. All on the frontlines responding to the challenge today, however, must be protected from another adversary: the liability that follows.
The administration, Congress and governors are laser-focused on deploying resources, developing plans to save lives and, ultimately, preparing to reopen our economy — and rightly so.
This focus is, by necessity, on the here and now, as evidenced by New York Gov. Andrew Cuomo’s appeal to retired doctors and nurses to return to the workforce as volunteers. Similarly, the business community is rising to the call, increasing and shifting their manufacturing efforts to address critical shortfalls in equipment.
Companies that make protective equipment are ramping up production to wartime efforts. Clothing manufacturers are filling in the gaps by making masks and other medical garments while auto companies make ventilators.
Liquor companies and distilleries are using the alcohol they produce to make hand sanitizer. Others still are donating supplies from their stockpiles.
Businesses willing to jump into action are not only essential, but provide hope that American ingenuity and resolve will prevail.
Months down the road, with the ability to look back on all this, companies that shifted their businesses overnight — and doctors who didn’t admit patients into the hospital for fear of exposure to COVID-19 — likely will face varying legal claims. Hospitals could be sued due to inadequate staff or resources.
Congress continues to grapple with legislative responses to the pandemic, and has taken steps to limit liability in narrow circumstances. Further congressional action remains uncertain. The onus to protect those answering the call for our country will fall on state legislatures.
Governors are making good-faith efforts to address liability concerns, as shown by recent executive orders signed by Cuomo, Gov. J.B. Pritzker (D-Ill.), and others. While I commend them for these actions, I worry the scope and substance of an executive order may not suffice for this enormous task.
Further, executive orders will likely meet court challenges, as gubernatorial authority to grant liability protection is uncertain. The months and even years that pass as cases are tried will provide information and clarity that are simply unavailable now. Today’s urgency and necessity will fade from view and memory.
By design, legislation is more durable and well-equipped to provide needed relief and survive judicial challenge. This is the most effective method to protect the people and entities our nation is counting on to wage this battle.
Legislation must be enacted to limit liability for healthcare providers and institutions affected by COVID-19. Any proposed measure should recognize that this situation forces frontline workers and companies to make difficult decisions amid a pandemic threatening to overwhelm facilities, staff, and exhaust the supply of essential equipment.
In this environment, prototype analysis, testing and quality control cannot be expected at ordinary, non-emergency levels. Federal law limits the liability of manufacturers of certain products in response to a pandemic, but many companies contributing to the effort will not qualify for this protection.
Future legislation must protect manufacturers from liability for actions taken in response to the pandemic.
The first, of what will surely be many, COVID-19 lawsuits already have been filed.
Purell and Germ-X, makers of hand sanitizer, as well as retail operations like Target — which sells their own store brand version of such products — were hit with class-action lawsuits in March.
There are sure to be years of litigation to take place at a later time with the benefit of perfect hindsight. We will know what was done incorrectly, what was inadequate and what was unnecessary — all will be abundantly clear.
Sufficient liability protections must be in place now to protect those serving and protecting the nation. Nearly every state legislature has suspended sessions due to the pandemic.
When they return, I urge them to do their part — and rise to the occasion — in responding to this crisis by enacting essential liability reforms.
