At the beginning of the pandemic, you couldn’t buy masks anywhere. No one had created rapid tests, nor had anyone distributed and administered them. No one had identified or created drugs or devices to treat symptoms. And we were light-years away from a vaccine.
But here we are! Talented and hardworking Americans were able to create the protections we now take for granted because their risk was tolerable. And that’s thanks to liability protection in the Public Readiness and Emergency Preparedness (PREP) Act. The PREP Act—signed in 2005 following the bird flu outbreak—protects manufacturers, distributors, and administrators of disease-control measures from lawsuits. So, if the FDA greenlights a rapid test, plaintiffs’ lawyers cannot sue the test manufacturer or the nurses who administered it, claiming that something went awry. Liability protection has thus been vital for Americans to acquire key protections, such as masks, ventilators, and vaccines.
A liability gap remains, however, for businesses that provide for Americans in other ways. Liability continues to threaten our hometown industries like gas stations, handyman services, hair salons, grocery stores, restaurants, auto shops, and wedding venues. It threatens our schools. It threatens our houses of worship.
More than Half the States Have Taken the Right Steps
But there is hope. This week, Florida joined the ranks of 29 other states in protecting Americans from plaintiffs’ lawyers. Florida’s law, S.B. 72, requires a potential plaintiff to first get a note from a doctor, expressing the doctor’s medical certainty that the COVID-related injuries were a “result of” a business’s actions. Most importantly, the bill provides immunity to any business that makes good faith efforts to comply with COVID-related guidances.
This type of measure has been needed for far too long. Plaintiffs’ lawyers have already spent $34 million in advertisements mentioning COVID-19. Congress has had multiple opportunities to add liability protection to COVID-related bills and hasn’t.
Striking a Balance to Advance Our Health
Tort (“you harmed me”) actions are not inherently bad. The government can’t, or at least shouldn’t, regulate our every move, so allowing the private sector to fight out the appropriate standard of care in court often makes sense. But COVID-19 is not one of those unregulated areas. Businesses, schools, and churches are constantly checked for distancing, mask usage, plexiglass barriers, and curfew adherence. They have been threatened, fined, and shut down. And they have closed rather than attempt to comply with impossible mandates given their business’s small size, low budget, or incompatible industry.
Florida’s law strikes a balance. Businesses, schools, and houses of worship must continue to comply with government health mandates. And they continue to provide the services we want and need. In return, we should not subject them to litigation they cannot win. No one knows with certainty how the virus spreads or why it affects some people more than others. By extracting money, rather than increasing our knowledge, we level down to a state of permanent lockdown, rather than up to a safe and advanced society.