Liability shields, which are intended to protect businesses that comply with Covid-19 health and safety regulations from coronavirus-related lawsuits, remain a controversial topic. The American Hotel & Lodging Association, the U.S. Travel Association, the Global Business Travel Association and other travel-related organizations have lobbied for the passage of such protection, and U.S. congressional Republicans tried to include liability protections in the $900 billion December relief package. Democrats, however, argued that it could weaken protection for workers. In the end, the Republicans backed off the requirement in exchange for Democrats dropping their demand for more aid for state and local governments.
Still, several industry association and supplier executives argued for the necessity of liability protection during a January joint HVS/The Lodging Conference event.
"The thing that scares me the most is we need Congress to pass this release of liability," said Aimbridge Hospitality executive chairman Dave Johnson, claiming that he's spoken with executives from "top 100" corporations and "they have said they won't publicly say this, but they won't put their people back on the road until they get that release of liability. The correlation between the legislation being passed and business travel will be huge. We need to get that issue in the forefront to get companies back and say it's time to travel and to do business."
Apple Hospitality CEO Justin Knight agreed. "Liability protection is essential," he said during the same event. "It's not in many cases that these people who work for large companies are afraid to travel—they are doing it—it's just that their employers are worried that given the inevitability that many of these people at some point will catch the virus, and it could happen heaven forbid on a business trip, and [the companies] could be held liable. It is something we certainly need to address."
More than a dozen states already have begun to enact Covid liability shields, either by taking legislative action or through executive orders by governors, with several additional states considering similar actions. AHLA president and CEO Chip Rogers prefers federal protection, however, and not a patchwork of "different states where we have protection here, but you don't have protection there," he said. "Because then you, as a business owner, are trying to determine where people are going to travel. You don't want to have to make that decision based on whether they are going to a state that doesn't have protection. We need a 50-state answer to this."
Rogers, however, doesn't believe that will happen with the current makeup of Congress, with the Democrats now in charge of both houses. "The likelihood that Congress is going to pass liability protection was reduced significantly after the Georgia [U.S. Senate] elections," he said. Georgia on Jan. 5 elected two Democrats to the Senate, flipping control of the chamber. "That's not a political statement. That's just a policy fact. Where we are is, we at AHLA will continue to push at the federal and state level."
Some corporate travelers, though, might not feel comfortable putting themselves at risk on a business trip, by getting on an airplane or staying in a hotel, despite the new health and safety protocols nearly every hospitality company started to adopt last spring.
Around the same time, there was talk that there could be lawsuits filed against companies or suppliers if their travelers were to contract Covid while on such a trip. However, according to statistics from the Hunton Andrews Kurth Covid-19 database, which tracks the number and category of Covid-related lawsuits filed in the United States, transmission cases represent a very small percentage, wrote American Association for Justice press secretary Carly Moore Sfregola in an email to BTN.
Out of 8,076 Covid-related lawsuits logged as of Jan. 25, 2021, complaints regarding exposure, potential exposure or fear of exposure totaled 496, or 6.1 percent, according to a document Sfregola provided BTN from the Hunton Andrews Kurth database. Those included lawsuits related to personal injury, wrongful death, malpractice, condition of employment (such as lack of personal protective equipment or fear of exposure), and other (health, medical and miscellaneous tort).
"Corporations have attempted to capitalize off the pandemic and get long-sought legal immunity, despite the fact that the 'wave of litigation' they have warned about has not occurred," Sfregola said. "Giving corporations immunity when they cut corners and endanger workers and consumers will prolong the pandemic and slow our nation's recovery."
It's a fine line between the two points of view, with duty of care at the center. Workers want to feel protected, yet liability measures could encourage corporations to loosen tightened corporate travel policies, boosting the industry. For Rogers' part, he said he is all for holding businesses accountable when there is negligence of duty.
"I think people have a misunderstanding of what these lawsuits actually look like," Rogers told BTN during a recent call. "It's not a case that the business owner neglected to take even basic cleaning and safety standard considerations, and [then] a group of people get Covid. That's not what we are talking about. There needs to be a remedy for that. We're talking about businesses that do the right thing but fall prey to what is really a shakedown. We've seen this with other laws where a certain small group of plaintiff attorneys file not dozens but literally hundreds of lawsuits solely for the purpose of making an offer to make it go away. They have no intent of having lawsuits that see a day in court. It involves a letter, a threat, a phone call that says, 'I'll make the threat go away if you give me X amount of dollars.' Our industry, when it is already on its knees trying to recover, should not have to put up with this. If someone actually does something wrong, they should face the consequences."