Oregon lawmakers could decide whether to grant coronavirus liability protections to businesses, schools and other organizations in the upcoming August special session.
Republicans, industry groups and 10 Democratic members of the Oregon House of Representatives pushed for those protections during the special session in June, prompting House Speaker Tina Kotek, D-Portland, to convene a work group to look into the issue ahead of the next special session.
Proponents of the legislation say that businesses and other entities that are following health guidance need to be shielded from frivolous lawsuits so they can safely reopen and operate amid the pandemic. Opponents argue that businesses have protections under current law and that new legislation would take away the incentive for entities to enact stringent COVID-19 safety measures.
“It’s a really complicated topic and I think we’re being very careful in how we’re analyzing it,” said Rep. Karin Power, D-Milwaukie, who is co-leading the work group. “Nonetheless, there still will be really big repercussions in moving forward with any liability protection.”
Oregon lawmakers are considering liability protections at the same time that contentious conversations on the same subject are taking place at the federal level. Senate Majority Leader Mitch McConnell and other Republican lawmakers want liability protections for entities whose workers or customers catch COVID-19 to be included in the next coronavirus relief bill.
According to the law firm Hunton Andrews Kurth, 3,832 coronavirus-related lawsuits had been filed in the United States as of Tuesday. Those cases include 16 personal injury suits from consumers, 42 wrongful death suits and 72 suits related to conditions of employment. There have been just 24 coronavirus-related lawsuits in Oregon, only three of which fall under those same categories, according to the law firm.
Still, at least 11 states have already proactively implemented liability protections for businesses and other entities amid the coronavirus pandemic. Some Oregon companies have started requiring customers to sign away their rights to sue as they wait on the Legislature to take action.
“We have to address this in the next session,” said House Minority Leader Christine Drazan, R-Canby, co-leader of the work group. “Our schools and our nonprofits and our businesses need to have protections from frivolous lawsuits. Everything is so uncertain right now. We need to give our communities and our schools a little bit of certainty in this very uncertain time.”
A coalition of more than 50 businesses, schools, government entities and nonprofit organizations have been pushing the Oregon Legislature to enact liability protections.
“The vast majority of businesses and organizations are making every effort to follow all regulations set forth by the governor and the Legislature, yet they are still vulnerable to unwarranted lawsuits,” said the coalition in a letter to the work group Sunday. “This group is asking that you ensure that schools, local governments and businesses that are acting in good faith are protected from unwarranted lawsuits, except in cases of gross negligence or reckless, wanton or intentional misconduct.”
Sandra McDonough, CEO of Oregon Business & Industry, which advocates for the state’s business community, said that she consistently hears from business owners concerned about liability as they bring employees back and once again welcome customers amid the pandemic. She said the business community is calling for “common sense protections” for the duration of the pandemic.
Jim Green, the executive director of the Oregon School Boards Association, said that many Oregon schools will be unable to reopen in the fall if state lawmakers don’t enact liability protections because their insurance providers aren’t offering communicable disease coverage. Oregon may not allow schools to reopen for in-person instruction anyway if coronavirus cases surge.
“School districts are very concerned,” Green said. “They want to try to open their doors in September, but if they don’t have insurance or they don’t have some sort of limited liability protection, they’ve said it’s going to be really hard for them to open their doors and put the assets of the district at risk.”
The work group has yet to draft a proposal that could be taken up in the August session, but is working off an amendment introduced in the last special session that would have shielded entities from liability if they complied with state guidance regarding COVID-19. The amendment would not have limited liability for “gross negligence or reckless, wanton or intentional misconduct.”
Power said the work group is taking a narrower approach to potential legislation and does not have plans to address employee lawsuits, medical liability or liability for long-term care facilities in any proposed legislation at this time. Separate legislation being considered in the Oregon Senate could address medical liability, Power said.
The coalition of organizations pushing for the legislation called on the work group to reconsider broader language that would be applicable to all entities and COVID-19-related suits. But opponents have expressed concern that broad liability protections could prevent workers at companies where there are large coronavirus outbreaks, such as food processing facilities, and families of people who die in nursing homes from suing.
Healthcare at Foster Creek, the site of the biggest coronavirus outbreak among long-term care facilities in the state, is facing $12.6 million in lawsuits for the deaths of seven residents.
But Arthur Towers, a lobbyist for the Oregon Trial Lawyers Association, whose members represent injured consumers, patients and workers, said that even narrow legislation could have severe impacts.
Towers said that patrons already have a difficult hurdle to clear under current law to prove that they were exposed to COVID-19 at a specific business or entity and that the Legislature shouldn’t be taking action that would limit the rights of people to hold entities accountable for subpar safety standards.
While advocates of the legislation say it would only protect entities working in good faith to prioritize safety, Towers said that liability protections would take away an incentive from businesses and entities to stringently implement safety measures and could disproportionately affect vulnerable populations, including children from underserved communities or those with disabilities who are especially reliant on school safety.
“We feel the current law protects business owners, especially those that are doing the right thing,” Towers said. “We don’t think the Legislature should be doing anything to relax safety standards or to take away incentives to be safe.”
Elizabeth Tippett, an associate professor at the University of Oregon’s law school, said that legislation could be useful in giving businesses clarity on what they need to do to protect safety and giving them a level of certainty that they can move forward with operations during the pandemic.
But she said that legislation needs to identify the specific standards that businesses must follow to be protected from liability and clearly define what is meant by negligence. She said individuals would have a much higher burden of proof if entities are shielded from liability except in cases of gross negligence, a higher legal standard than negligence.
Power said that the work group is continuing to review feedback from stakeholders and will have to consider the impact that the legislation will have on both entities and patrons as it determines how to proceed.
“I understand our small businesses are very concerned about lawsuits as they reopen. … At the same time, if we were to move forward with this liability protection, it is tilting the scales of justice in favor of businesses versus people who get sick,” Power said.