Columbus, OH – In a new policy memo, Policy Solutions for the Pandemic: Protecting Businesses and Workers from COVID-19 Related Lawsuits (see full text below or download a PDF), The Buckeye Institute calls on policymakers to provide businesses and workers with immunity from COVID-19 related lawsuits as long as they are taking reasonable steps to keep Ohioans healthy and safe.

“As Ohio begins to safely reopen, policymakers must ensure that workers and businesses that take reasonable precautions to protect customers from COVID-19 do not become victims of needless lawsuits,” said Andrew J. Geisler, legal fellow with The Buckeye Institute’s Legal Center. “By basing ‘reasonable conduct’ on either the state’s or the Centers for Disease Control’s guidelines for workplace safety, policymakers will provide businesses and workers clear guidelines that give them confidence to reenter the marketplace without fearing virus-related lawsuits.”

Ohio has adopted many of Buckeye’s policy recommendations to boost the state’s health care system and support Ohio’s workers, small businesses, and economy including:

• Increasing telehealth access and monitoring;
• Extending universal recognition of out-of-state medical licenses to nurses;
• Permitting pharmacists to test for COVID-19;
• Enlisting medical and nursing students to support doctors and nurses fighting COVID-19;
• Beginning to eliminate unnecessary budget commitments;
• Instituting a hiring freeze in state government; and
• Allowing establishments with an existing liquor permit to sell and deliver alcohol on carryout menus. 

The Buckeye Institute’s policy solutions that policymakers can take to ensure Ohio and the country are ready to fight and recover from the pandemic can be found at: www.BuckeyeInstitute.org/Policy-Solutions-for-the-Pandemic.

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Policy Solutions for the Pandemic
Protecting Businesses and Workers from COVID-19 Related Lawsuits

By Andrew J. Geisler
May 8, 2020

The Buckeye Institute’s Recommendation
As Ohio looks to reopen safely from the pandemic shutdown, policymakers should create a special tort rule defining “reasonable conduct” to shield businesses and individuals from liability and unnecessary litigation risk related to COVID-19. For the duration of the crisis, Ohio should base the tort liability standard for preventing injuries related to the virus on either the state’s or the Centers for Disease Control’s guidelines for workplace safety. Those operating within the prescribed guidelines should be presumed to have taken reasonable precautions as they reopen and may therefore avoid tort liability and expensive litigation defense.

Background
To avoid tort liability, businesses and individuals must take reasonable precautions to protect the health and safety of their employees and customers from obvious risks. The unique uncertainty and health risks created by the novel coronavirus, however, make defining “reasonable precautions” on a case-by-case basis untenable and would invite unnecessary litigation even against businesses taking reasonable precautions as they reopen. Lawsuits and the threat of lawsuits alleging virus exposure will further strain our dormant economy as it moves toward recovery. Many businesses may delay reopening or spend significant resources to take reasonable precautions only to be sued despite their best efforts. Ohio should keep that from happening by shielding those businesses and individuals adhering to recommended safety guidelines from tort liability for virus-related harms. 

Similarly, as health care and other front-line workers continue to take great personal risk in the fight against COVID-19, Ohio should shield them from virus-related tort liability for the actions they take in the scope of their employment. The special tort liability rule should allow the medical community to continue taking reasonable care and precautions to treat patients without the latent threat of costly tort litigation. Such a rule will help health care providers, business owners, and individuals to continue to act safely and with confidence.

Conclusion
To reopen Ohio safely requires prudent liability shields to help restore a more normal life and awaken the slumbering economy. As Governor DeWine has said, “We can stay safe, we can protect each other, we can protect our most vulnerable and at the same time move our businesses back, get people back to work.” To do that, Ohio should provide businesses and individuals clear safety guidelines that give them the confidence to reenter the marketplace without fearing virus-related lawsuits. 

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