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The Economy Will Not Open Until We Have Safe Harbor Protection

The legal sword of Damocles hanging over the collective heads of employers and business owners is really the constraint keeping our economy from opening.

I’m constantly amazed at how people who shun any kind of reopening fit their arguments to whichever issue seems to evoke the most emotional response. Contrived images of people eating, or at the beach, without masks are paraded as reckless abandonment of all countermeasures designed to slow the spread of coronavirus.

One question that really bugs me is whoever is taking those pictures obviously is at the places filled with maskless, so-called reckless citizens flouting all stay-at-home measures. Apparently they came just to document the careless without engaging in the revelry. Or are they wearing an NBC suit, and nobody noticed it?

The other question that really bugs me is the insistence that a governor’s “reopening” of a state will be followed to the letter. When Gov. Brian Kemp ordered that Georgia could reopen bowling alleys, nail shops, massage therapists, tattoo parlors and hair salons, these arguments go that all of those businesses would open by his order, as vassals obeying their liege.

The same people argue that “the poor” cannot access the legal system to fight big businesses like Amazon who would take advantage of workers (by employing them and paying $2 above the prevailing wage plus benefits for the same job). Or customers who eat at said restaurants, or visit said hair salons, would have no recourse if they were infected by the poor hygiene in those establishments–even though the governor’s order contained strict requirements for opening–despite the fact that every intersection contains giant billboards advertising legal services.

The fact is, as long as there are deep-pocketed companies with corporate legal staffs, there will be litigators who make their living by digging into those deep pockets and shoveling cash into the hands of eager complainants, keeping, of course, a third of the settlement as a contingency fee, plus expenses.

The legal sword of Damocles hanging over the collective heads of employers and business owners is really the constraint keeping our economy from opening.

Writing in the Wall Street Journal, William Galston encouraged Democrats to support “Safe Harbor” liability protection legislation, provided it contains a sunset provision and worker protection. I agree.

Democrats want aid for states and localities; the Senate majority leader wants protection for businesses against class-action lawsuits. Some partisans believe that the U.S. faces a binary choice: protect workers from health hazards or protect reopening businesses from legal jeopardy. This is a classic false dilemma. We must do both, and we can. The political parties need to come together on a strategy that reduces obstacles to the reopening of the economy while protecting employees, so far as possible, from Covid-19 workplace risks.

Public policy lawyer Edward Lindsey proposed a similar protection for property owners and businesses who serve the public, to shield them from civil negligent tort liability. Some businesses have long enjoyed that good faith immunity, such as offered to medical practitioners at the scene of an accident, or school personnel telling parents about a child’s potential drug abuse.

In the midst of this worldwide health crisis and the resulting severe economic fallout, all business owners today—especially small businesses that we rely on to provide the goods and services needed in an integrated society—are in turmoil with their financial business investment and years of sweat equity being placed at dire risk. Not opening subjects them to bankruptcy. Deciding to open should not subject them to the added stress of potential legal liability as a result of a sickness beyond their control to prevent. Furthermore, for those businesses that choose to reopen, it is in our best interest that they do so in conformance with the best available safe health practices, including those outlined by our elected leaders and government departments.

Workers are patrons are scared to go back to work and out to eat. That’s normal, and will only subside with time. But some businesses are holding off opening, despite orders allowing them to open, because they are afraid of legal liability.

Until, at the federal or the state level, these kinds of legal “Safe Harbor” laws are crafted, without political maneuvering and the usual deadlocks, the USA will be severely hampered in our economic recovery, possibly for years, as lawsuits clog the legal system, and businesses go bankrupt while waiting for the proper time to open.

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