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Where Are the Guidelines?

Published on July 8th, 2020

A striking bipartisan consensus arose in the Senate Judiciary Committee last month on the fact that the Trump administration hasn’t done its part to assure businesses and schools on how they can open responsibly, leaving many unsure how to proceed and worried about the consequences if they get it wrong.

The committee focused primarily on the question of whether to give businesses immunity from lawsuits over COVID-19. That wouldn’t be a good idea. But luckily, the hearing unearthed the real remedy to reassure businesses that it’s safe to reopen: giving them clear federal rules that will protect both well-meaning business owners and the ability to hold bad actors accountable.

David Vladeck, a law professor at Georgetown University who once headed the Bureau of Consumer Protection in the Federal Trade Commission, testified to the Judiciary Committee that companies generally are not vulnerable to negligence lawsuits if they can show they reasonably followed government safety regulations. As a result, he said, “the best way to reduce liability is for agencies to step up and issue guidelines.”

Lindsey Graham, the South Carolina Republican who chairs the Senate Judiciary Committee, asked every witness in Tuesday’s hearing — a group that included advocates for business, labor, and academia — whether “the country would be better off” if OSHA issued industry-specific guidelines about how businesses should protect workers and customers. The witnesses all said yes. (The labor representatives added, however, that it also mattered whether anyone would enforce those rules.)

Given how easy it is to transmit the coronavirus, it would be hard for plaintiffs to definitively establish where they or a deceased family member caught COVID-19, let alone that it resulted from a business’s negligence. Even if someone wanted to try to make such a claim, many lawsuits would be blocked either by state laws that route injury complaints through the workers’ compensation insurance system or by employment agreements that require workers to go to arbitration rather than the courts.

It would be terrible for Congress to reduce the threat of lawsuits for employers in egregious situations. The prospect of being sued for negligence helps to hold companies accountable for public-health and safety regulations that the government can’t enforce through inspections alone.

Joe Pioletti
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