Prof. McDonnell Publishes Op-Ed on Business Liability During the COVID-19 Pandemic

Professor Brett McDonnell published an op-ed article titled “To Reopen the Economy, Businesses Need a ‘Safe Haven’ Protocol to Avoid Liability” in the Star Tribune on May 27, 2020. Co-written with Matt Bodie, a professor at the St. Louis University School of Law, the article addresses the current debate over waiving liability of businesses to their employees who are infected with the novel coronavirus at work. Republicans are demanding such a waiver as part of the next bill responding to the pandemic, while Democrats are opposed. McDonnell and Bodie argue that the fear of liability may indeed inhibit some businesses from re-opening, but that employees also justifiably fear employers opening up too quickly with inadequate safeguards.

In response, the article suggests two potential safe harbors which would allow employers to avoid liability. One safe harbor would require OSHA to create a standard for businesses to follow to safeguard against infection. Employers which follow that standard would then be immune for liability. But McDonnell and Bodie argue that an alternative safe harbor would be even more effective. Businesses that adopt virus safety plans approved by their employees would be immune from liability if an employee got infected. The second safe harbor would be more flexible and tailored to the circumstances of individual businesses. Employee-approved virus safety plans would also draw upon the knowledge of employees, and help ensure that employees understand and comply with the plans.