Essential Businesses Detail Lessons Learned, Need for Liability Protections

July 27, 2020 by Kate Michael

WASHINGTON – While many businesses across the country have shuttered doors and furloughed employees, some essential businesses, like those that provide health care, food, utilities, and other critical services, have continued to operate throughout the pandemic. They are now joined by a variety of new businesses in phased reopenings that could learn from those services that remained open.

What worked, what to avoid, and how to implement safety protocols are among the things businesses and customers need to know as America recovers. To assist businesses hopeful for economic rehabilitation, the Bipartisan Policy Center think tank held a virtual discussion to identify lessons learned from business deemed essential to work throughout the health crisis.

“First we weren’t supposed to wear masks, then we were,” said Julie Jackowski, senior vice president, general counsel and secretary at Casey’s General Store. These grocery and convenience stores, located largely in towns of less than 5,000 people countrywide, were deemed indispensable in all states of operation. 

Jackowski explained that, even as suggested protocols changed, Casey’s followed commonsense guidance like social distancing stickers on the floor, directing traffic one way, limiting customers in-store, using plexiglass shields, enhancing sanitation and cleaning, and making sure stores had supply and safety protocols. Additionally, Casey’s switched from self-serve to serving guests, shifted workers into teams so those working together were only exposed to each other, and chose to enhance appreciation pay for workers in harm’s way.

“It’s great to keep doors open, but difficult,” Jackowski said. “We all do disaster planning… but a global pandemic that goes on for months is unprecedented.” Added to that, “different states have differing guidelines… and local officials also interpret operations differently.”

So not only did Casey’s have to focus on health safety protocols, supply chains, and logistics, but there was a “need to pivot on a moment’s notice as guidelines change,” which Jackowski said necessitated agility and communication. And while businesses continue to focus on health protection for customers and employees, other forms of protection are increasingly top of mind, including concern around potential liability.

“There’s so much uncertainty associated with coronavirus,” agreed Rep. Garret Graves, R-La. “Lessons learned need to be applied as best we can… but [there’s a] curve ball every day.” He asserted that businesses don’t need to face the additional challenge and cost of lawsuits “just in case… six months from now, we learn that hand sanitizer is not actually helping.” 

With incomplete and changing information, Graves believes in protecting those who “did the best they could” to comply with health guidelines, not holding them liable for medical culpabilities not known at the time. 

Jackowski agreed, suggesting that expensive and lengthy lawsuits could prohibit businesses from reopening. She contended that businesses that “act in good faith… taking reasonable steps to protect workers and customers,” should get liability protection “not to get out of trouble or not to pay,” but because businesses would feel more comfortable with a layer of protection in an uncertain environment. 

Still, she recognized that the essential question remains: What is good faith compliance? 

Liability — or tort — reform has a long partisan history, but Graves is working closely on the Democratic side with Rep. Henry Cuellar, D-Tex., to offer some confidence to businesses that fear facing litigation as they grapple with unproven safety measures while trying to stay or re-open. 

“We’re trying to find a balance between the health of the individual and the health of the economy,” said Cuellar. “Small businesses that are following the rules and doing what they are supposed to do should not have to worry about frivolous lawsuits following them.”

“If there’s no gross negligence or indifference, then why are we going to penalize small businesses with a lawsuit? It’s common sense,” said Cuellar, explaining why he joined the bipartisan coalition of policymakers to support liability limitations in the HEROES Act pandemic relief bill. This language targets those who try to abide by guidance and “do the right thing” moving forward.

Proponents believe that companies spending time and money to implement appropriate safety measures should be able to re-open with the assurance that they will not then have to contend with the additional cost of lawsuits. Those opposed believe that immunity could leave employees unnecessarily exposed to the virus, with little recourse for negligence if appropriate precautions are not enforced. 

Jackowski admits that concern surrounding potential liability does give businesses like Casey’s pause, but they have a commitment to be “a good corporate citizen using [Casey’s] resources to serve the community and pay employees properly.” 

In the absence of litigation protection, she says that all businesses can do is to prepare for a renewed coronavirus surge with continued diligence. “Don’t let your guard down, even if your area has few cases or does not seem to be resurging,” said Jackowski. “All indications are that this is going to go on for several months.” 

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