Several associations representing aspects of the business travel industry have joined dozens of others in lobbying the U.S. Congress to pass legislation that would shield companies that comply with federal health and safety guidelines from legal liability if their employees or customers contract Covid-19.
Among them, the Global Business Travel Association "is pushing this hard," a source briefed by GBTA's leadership told BTN on condition of anonymity. "They see the waiver as a major way to get people back to travel. Corporations weigh their return to travel against the liability they have if things go south with their traveling employees. Having a waiver in place would be huge, not only for travel suppliers—who obviously barely have any cash to survive, let alone fight lawsuits—but also for corporations to allow their travelers back to travel."
GBTA did not respond to BTN's inquiries.
U.S. Senate majority leader Mitch McConnell repeatedly has said he will not allow another coronavirus relief package to pass without some liability protections for businesses. Four states— North Carolina, Oklahoma, Utah and Wyoming—have enacted laws with some form of Covid-19 liability protections for businesses.
On May 11, a coalition of associations from a variety of industries sent a letter addressed to McConnell, U.S. House Speaker Nancy Pelosi, U.S. House Minority Leader Kevin McCarthy and Senate Minority Leader Chuck Schumer to voice "support of Congressional efforts to create a targeted and limited safe harbor from liability for companies that implement federal public health guidelines related to the transmission of COVID-19."
GBTA is among the signatory travel industry associations. Others were the U.S. Travel Association, U.S. Chamber of Commerce, Airlines for America, the American Society of Travel Advisors, the Travel Technology Association as well as several state-level travel associations.
On May 27, multiple associations, including several from the previous letter, joined the U.S. Chamber of Commerce and U.S. Chamber Institute for Legal Reform in sending a letter to Congress. Among the requests were temporary liability protections for businesses, educational institutions and non-profits that follow applicable public health guidelines concerning Covid-19. GBTA was not a signatory to this letter.
"The general idea in the letters is to provide a temporary liability shield for businesses that follow the applicable federal, state, local and [U.S. Centers for Disease Control and Prevention] guidelines," said American Society of Travel Advisors EVP of advocacy Eben Peck. "We're thinking of scenarios like, a traveler goes on the road for work, gets sick and possibly dies, company is sued. Same scenario, [travel management company] is sued. TMC helps to organize a large gathering or trade show, TMCs are sued."
At the moment, CDC recommends against any nonessential international travel. "In the current environment, if companies were forcing people to go on the road, like today or tomorrow, and something happened," Peck said, "I think there would be some liability there."
Fear of litigation from travelers and employees may hamper the travel industry's recovery, according to Peck. "The risk of lots of lawsuits and fear of lawsuits [may] inhibit the system from starting back up," he said.
Peck cited the 2002 U.S. Support Anti-Terrorism by Fostering Effective Technologies Act as one example of a previous safe harbor provision. Enacted in the wake of 9/11, the act shielded companies from some liability if it the U.S. Department of Homeland Security verified that its security products and services were adequate to provide safety and security in the event of an act of terrorism. Some NBA, NFL and MLB stadium providers have been awarded such protections.
The details of the potential Covid-19 liability protections still are being discussed and specifics haven't been nailed down, but ASTA has given its "conceptual" support, Peck said.
Liability protections are unnecessary, according to Remington Gregg, counsel for civil justice and consumer rights for Public Citizen, a consumer advocacy group. "It is difficult [for a plaintiff] right now without any business immunity to prevail in court for contracting Covid. Why? Because you have to show a direct causal link between a business's action and you catching it," he said.
"I catch an Uber, go to the airport, get on the plane, get another Uber and get to the hotel. How am I going to prove where I contracted Covid?" said Gregg. "That's not going to prevail in court. You cannot satisfactorily prove the causal connection." Gregg said the U.S. Chamber of Commerce has not conceded how difficult it is for a plaintiff to make a case and accused it of using the pandemic as an opportunity to achieve "a wish-list item."
Whatever safe harbor legislation might pass Congress would be fairly unspecific, Peck said. "I think [the legislation] will be pretty generic and not terribly specific where someone caught the disease, because that would be impossible to determine," Peck said.
Another consideration, according to Gregg, is that the CDC Covid-19 guidelines are vague and unenforceable. "They're just that, they're guidelines. Guidelines don't have the force of law," Gregg said.
Indeed, Peck said one of ASTA's frustrations has been the gaps in and vagueness of the CDC's guidelines regarding travel. "They're very clear about cruise ships," he said, but for airline best practices and other suppliers, he said the CDC had "not been very specific" with its guidelines. "They've got a hefty lift over the next months to be as clear as possible," said Peck. Our industry is so complicated and sprawling. There are so many touchpoints."
Regardless of whether Congress acts, GoldSpring Consulting partner Will Tate said the business travel industry's rebound ultimately will depend on how comfortable employees feel traveling. "I think that's where this conversation goes, where the traveler says, 'I'm not sure I feel comfortable that the airlines are being safe enough for me,' " he said. Employees whose jobs require travel can have "larger conversation about the job itself" once the current "grace period" is over.