Give Businesses and Consumers the Confidence to Re-Open

In addition to the lives tragically lost, the economic ravages of the coronavirus pandemic are evident everywhere. Unemployment levels not seen since the Great Depression. More than 100,000 small businesses shuttered. A near-total collapse of tourism in major U.S. cities.

The speed and strength of the economic recovery depends on whether businesses and consumers feel comfortable resuming normal activities. One thing is certain: The pandemic has radically changed how consumers and businesses interact, and much of the trust we all took for granted a few short months ago has been shattered.

Businesses, especially the many small companies forced to the brink of bankruptcy by the crisis, are nervous that re-opening may unleash a flood of coronavirus-related lawsuits.

A survey by the National Federation of Independent Business found that nearly 40 percent of its members were “very concerned” about potential liability for coronavirus infections, while the U.S. Chamber of Commerce reports that 67 percent of small businesses with 20-500 employees are worried about their legal exposure. Given that these businesses normally employ 44 million workers, a significant portion of the U.S. labor force may be impacted by business decisions driven by fears of lawsuits.

If history is a guide, the current legal landscape is fertile ground for frivolous litigation designed to line the pockets of trial lawyers rather than compensate injured workers or consumers.

To mitigate these risks, many businesses are asking their customers and employees to sign waivers promising not to sue if they catch the coronavirus in the store or on the job. But legal experts warn that the waivers may not hold up in court. Even if they provide some protection for businesses, the waivers don’t apply to family members or friends who become ill after coming in contact with someone who signed them. In short, waivers are not an adequate substitute for broader immunity.

Some states are already leading the way, but Congress needs to take action to ensure nationwide protection.

The public, regardless of political affiliation, overwhelmingly believes that businesses who try their best to ensure the safety of their employees and customers should be shielded from liability for infections. Of course, businesses that engage in gross negligence or willfully ignore health guidelines should be held responsible for the behavior.

While granting businesses limited immunity protection is an important step, re-opening businesses without strengthening consumer confidence won’t achieve the rapid recovery we all want. Many people remain deeply concerned about the risks of catching the coronavirus in social settings. A poll in late May found that 83 percent of Americans are at least somewhat concerned that lifting restrictions in their area will lead to additional infections; 54 percent of respondents were “very” or “extremely” concerned that reopening will cause infections to spike. And with infection rates rising in some states, consumers have good reason to be cautious.

The CDC and state health authorities can help by working to make health guidelines more streamlined, consistent, and understandable — and to avoid the confusion caused by contradictory recommendations.

To help consumers make informed decisions, businesses should clearly indicate — through posts on their websites and social media pages, as well as signs at the door — the measures they are taking to keep their customers safe.

On top of federal and state safety mandates, businesses are free to adopt a wide range of approaches to limit the spread of the virus. Many anxious consumers want to know: Is “deep cleaning” occurring on a regular schedule? Are employees’ temperatures being checked? Are masks required, even when social distancing is feasible? How is social distancing enforced? By disclosing relevant information like this, businesses can give consumers the tools to accurately weigh the risks. In these uncertain times, visiting a business will never be risk-free.

Combining legal protections for companies acting in good faith with enhanced transparency about the measures taken to protect consumers’ health is the best way to give both businesses and the public the confidence they need to get America back to work.

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