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Legal experts anticipate a raft of lawsuits out of the coronavirus pandemic as businesses reopen and figure out a new normal, complete with detailed state-issued checklists of what and what not to do.
Increased liability was mentioned as the second-biggest concern about reopening by 68 percent of the 842 U.S. small businesses polled recently by the National Federation of Independent Business, an advocacy group for small businesses. The biggest worry by 73 percent of respondents was getting customers back.
“They’re worried that they’ve survived COVID-19 only to be sued out of business by frivolous lawsuits,” said Karen Harned, executive director of the federation’s Small Business Legal Center. “Small businesses won’t go to court. They’ll just write out a check.”
The emerging fear among businesses is that personal injury lawyers could seize on the virus to capitalize for clients. They could include anything from claims by employees or customers that they caught the virus in a reopened business to what Harned calls “bottom feeders” who measure distances between restaurant tables to see if they are the required 6 feet apart.
The federal government could also sue small businesses that received money from the new Payroll Protection Program for not following the rules to spend the money, lawyers said.
Both federal and state legislators are examining possible protections for businesses from lawsuits. U.S. Senate Majority Leader Mitch McConnell, R-Kentucky, has warned that not protecting business owners from coronavirus-related lawsuits could dramatically slow the economic recovery. He and other U.S. lawmakers have proposed adding safe-haven provisions in the next coronavirus stimulus bill.
Maine lawmakers brought up the issue in a Wednesday virtual meeting with Labor Commissioner Laura Fortman. Sen. Stacey Guerin, R-Glenburn, asked Fortman if she would talk to Gov. Janet Mills on the issue of liability. She said employers should be held harmless if a worker gets sick on the job unless there is “gross negligence.”
Sen. Shenna Bellows, D-Manchester, said that liability is a “policy conversation” that the panel should take up next year. Bellows cited the complexity of reopening, saying she got a call from a worker who was told by their employer that they couldn’t wear a mask because “it would send the wrong message” to customers. The governor’s executive order says everyone has a right to wear a face covering.
Complying with the governor’s checklists of dos and don’ts on the Maine Department of Economic and Community Development website, along with Centers for Disease Control and Prevention guidelines, are among the best protections for reopening businesses, lawyers said.
“They should follow that guidance to reduce their potential liability, because to be successful a claim must show negligence, that they didn’t follow the guidelines,” Joshua Scott, a lawyer at Jackson Lewis who practices in Maine and New Hampshire, said.
He said it is difficult for most people to prove where they caught the virus, except perhaps for health workers regularly exposed to the disease.
“You’d have to show the business owner was not acting in a responsible way. You’d also have to show that you were injured because of that failure,” Christian Lewis, a lawyer with Hardy Wolf & Downing in Lewiston, said. “Those are two big hurdles.”
Martha Gaythwaite, chair of Verrill Dana’s litigation and trial group, recommended that businesses keep a checklist of what they are doing to keep their premises safe and how they complied with list items such as wiping down counters every hour.
“Have a checklist to make sure you know who’s doing what and that they have actually done it,” she said.
Other issues may arise when business owners cannot rehire all laid-off employees, said Doug Currier, who chairs the firm’s employment and labor group. An older employee or person with a disability who is not rehired may have a claim against the business.
A potentially rife area for lawsuits is the Paycheck Protection Program, he said. Maine banks processed some 26,000 of the forgivable federal loans worth roughly $2.6 billion as of May 6 for small businesses.
“We already know that there are lawyers on the plaintiff side who are looking at whether or not businesses are compliant with the fine print associated with the loans,” Currier said. “You’ve got to dot your I’s and cross your T’s, because if you don’t have your act together, the government’s going to come in.”
Businesses are weighing the potential for lawsuits, but they are generally planning to reopen because if they do not, they might go out of business anyway.
“Yes, I’m worried about potential liability issues,” said Kate Williamson, general manager of the Gingerbread House restaurant in Oquossoc, a town in the Rangeley Lakes region. She plans to reopen for dine-in service on Memorial Day weekend.
“But it’s not my biggest worry,” she said. “My biggest worry is that we would be closed. The alternative is that we lose our business.”
Carrie Smith, owner of Kosta’s Restaurant and Bar in Brewer, said she isn’t worried about potential lawsuits.
“Restaurants are held to a pretty high standard anyway for cleanliness and food preparation,” Smith said. “Most restaurant owners I know are just begging to have customers, then we’ll deal with what people might say after.”
BDN writer Jessica Piper contributed to this report.
Watch: Janet Mills outlines her plan to reopen