Republican lawmakers are moving to make it harder for someone who contracts COVID-19 to sue the business where they believe they were infected or a company that made a device that did not provide the promised protection from the virus.
Legislation introduced Monday still preserves the right of all to sue those whose actions or inactions exposed them to the virus.
But the measure spells out that simply proving negligence by the business owner is not enough. They would have to show that there was gross negligence. And that generally requires someone to convince a jury not only that the business failed to take some action to preclude the spread of the disease but that it was done in reckless disregard of the consequences.
And there’s something else.
This proposal says that when the claim involved COVID-19, the standard for proof becomes “clear and convincing evidence.”
That is a higher burden than “preponderance of the evidence,” essentially asking a jury to decide if the allegations are more likely true than not. But it is not as strict as the criminal standard of “beyond a reasonable doubt.”
House Speaker Rusty Bowers, R-Mesa, did not dispute that if this becomes law employees will have a more difficult time of proving that the unsafe conditions at a workplace are responsible for their illness. But he said that’s not the focus of what Republicans are trying to do: stimulate and reopen the economy.
“There is a very large segment of the public that runs our economy, that we have to quickly empower and build their confidence that they’ll be able to reopen and have an acceleration where they can feel comfortable hiring the employees, the employees can feel comfortable, all working responsibly together to move the needle,” he said. “And I think a liability protection bill that has a higher standard on two counts is a good thing to do.”
And what of protections for workers who believe they are being put in unsafe situations?
“I don’t believe any employee is being forced to go into any situation,” Bowers responded. Ditto, he said, of customers having to go to any business.
“We’re not saying, ‘You must go patronize,’ ” the speaker said. But Bowers said COVID-19 requires special protections for employers.
“One of the major challenges to all businesses right now, that they have expressed to us, is their fear of uncontrolled liability in a very hyper-litigious society,” he said.
“The trial attorneys may want to have open season and lean on people,” Bowers said. “In a pandemic, I would think that would be a well-based fear.”
Rep. Athena Salman, D-Tempe, the House co-minority whip, said it is true that workers can refuse to return to what they believe are unsafe situations. But she also pointed out that they would forfeit their unemployment benefits.
Federal law allows people to refuse available work under only narrow circumstances, like being quarantined, caring for a family member who is infected, or being a member of a population that is particularly susceptible to COVID-19. Anyone else offered their old job back has to return or stop collecting benefits, a situation she said that creates real problems.
“If you are a restaurant worker and your employer says, ‘You can’t be wearing a mask while you’re serving food,’ and you’ve been self-quarantining this whole time until you’re forced to come back to work … you have to go back to work,” she said. More to the point, Salman said if an employee in that situation gets sick, “it is likely that that person probably contracted it while they were at work.”
Bowers said COVID-19 is different, requiring special protections for businesses.
But Barry Aarons, lobbyist for the Arizona Association for Justice, said the problem is that nothing in the proposal helps employees who may become ill due to the negligence of others. In fact, he said, the reverse would be true, making it even more difficult for them to hold others liable.
Gubernatorial press aide Patrick Ptak said the governor is focused on ensuring that Arizona “safely opens.” And that, he said, requires the cooperation of employers.
“He knows the challenge this has placed on our small business and wants to work with the business community on solutions that protect consumers and entrepreneurs,” Ptak said.
That leaves the question of what is different now that requires special rules for lawsuits.
Glenn Hamer, CEO of the Arizona Chamber of Commerce and Industry, defended special liability rules for COVID-19 cases.
“What’s different right now is the severity of the disease and the speed for which we need manufacturers to step up and produce the products necessary to keep Americans alive,” he said.
“Some are literally starting from scratch in putting these together,” Hamer said. The same thing is happening as distillers are now manufacturing hand sanitizer.
“The reward shouldn’t be, ‘Hey, they accidentally screwed something up’, they’re sued into oblivion,” he said. “It should be, if there’s a mistake, they’ll change it quickly.”
Anyway, Hamer said, the law applies only to lawsuits involving COVID-19.
The plan is to have the House vote on the measure this week and send it to the Senate which, while having voted to say it had completed its business, is technically in recess.
One question that remains is whether courts will uphold the special rules even if they are enacted. The Arizona Constitution specifically bars lawmakers from limiting the right to recover damages for injuries. The question that remains is at what point imposing a higher burden on plaintiffs effectively eliminates their right to sue.
Salman said the GOP plan is paying attention to the wrong issue.
“The focus should be that we are living at the beginning of a global pandemic that is costing people’s lives, now how do we open up the state when every single reputable public health expert is saying it is way too soon,” she said.