Texas dropped its COVID-19 mask mandate on Wednesday, but some businesses in the state will still require customers and workers to wear masks.
This decision might be a case of mitigating liability. Some states are passing new laws to protect businesses from being sued if a person believes they caught COVID-19 at their establishment. Florida, Georgia and Indiana are just a few of the states that have already implemented these protections.
Even for states that don’t yet have liability protection, it would still be difficult for employees to file lawsuits against businesses through the Occupational Safety and Health Act of 1970, says Fatima Hussein, a worker safety legal reporter for Bloomberg Law.
“The other option they have is to sue their employer only if they can reach the bar of proving gross negligence or wanton and willful misconduct against the worker in the workplace,” she says.
A prime example of this situation is when managers at a Tyson Foods plant in Iowa placed bets on which of their employees would catch the virus. The wager led to seven managers being fired and wrongful death lawsuits, which need to reach a high bar of proof.
Workers, advocates and management attorneys say they aren’t seeing as much legal action as people expected when legal shields were proposed and passed, Hussein says.
States are taking matters into their own hands because the federal government has not taken action on federal liability shields.
Some states have liability shield laws and others don’t, which calls into question whether litigation should be handled in federal or state courts, Hussein says. Plaintiffs lean toward state courts, while businesses looking to avoid providing evidence head to federal courts. A business looking to avoid those evidentiary rules would favor federal court instead.
Hussein says that the growing presence of liability shields is stirring fear among business owners who are trying to stay open amid the pandemic.
“There are a lot of small business owners who want to ensure that a lawsuit doesn't crush them as they've had to close up shop during this full year,” she says.
When it comes to more liability shields, Hussein says she expects to see them from Republican legislatures. But that isn’t a guarantee that things would change for businesses or employees.
“At the same time, we may or may not see an influx of lawsuits filed against companies if they aren't keeping their workers safe on the job,” she says.
This segment aired on March 10, 2021.