COVID-19 Litigation an Obstacle to Economic Recovery, Goldberg Argues

Shook Partner Phil Goldberg has written an op-ed for The Hill arguing that litigation alleging companies are liable for employees or customers contracting COVID-19 is a threat to the country's economic recovery from coronavirus-related shutdowns.

“Opportunistic litigators thrive in this atmosphere of uncertainty,” Goldberg argues. “Without a common definition of what constitutes negligence, the standard employers will be judged against is anything the plaintiff’s lawyer can convince a jury it should be. If workers get COVID-19, lawyers will argue that whatever safety protocols an employer adopted were not enough to protect the plaintiff.”

Goldberg urges legislators to protect companies from “traditional negligence claims over actual or potential exposures to the coronavirus” and further suggests that legislation “should require people filing COVID-19 lawsuits to establish their right to sue by specifying what the employer did to create an ‘unsafe’ condition that allegedly caused them to get sick.”

“Finally, the legislation should include assurances that when America’s infectious disease experts, through CDC guidance or the Occupational Safety and Health Administration (OSHA) rulemaking, provide COVID-19 protocols tailored to a specific facility, complying with them creates a safe harbor from litigation,” Goldberg concludes. “There will always be risks, and employers need to know what they are expected to do to help reduce those risks.”