Viewpoint: Virus no excuse to litigate

Indiana lawmakers must protect state’s small businesses operating during pandemic

Barbara Quandt Underwood is the state director for NFIB in Indiana.

The coronavirus’s impact has reached every corner of the state, and there’s no question it will take months, if not years, to recover from its devastating strength. Among the hardest hit from the pandemic are small business owners. Many were forced to shut their doors, lay off longtime and valued employees, and watch helplessly as their customers, revenue and decades-long hard work slipped away.

We are, however, making progress. Indiana is slowly reopening, but the road to recovery will not be easy. The key to how fast our economy gets back on track lies with our small business owners. What they’re telling me is clear: they are scared about getting slapped with a frivolous lawsuit. As small business owners work to bring back their employees and the families they support and serve their customers in a safe way, they shouldn’t have to worry about costly litigation that could put them out of business for good.

According to a recent National Federation of Independent Business survey, almost 70% of small business owners are concerned about increases in liability claims as they reopen. States across the country — both red and blue — already have passed important litigation reforms. It is time for Gov. Eric Holcomb and the Indiana legislature to follow suit. We need to stand up for Indiana small business owners who are doing everything they can to balance reopening Indiana’s economy with keeping their customers and employees safe.

The coronavirus has reached every age group in Indiana, but thankfully, it seems that most who are infected either display minor symptoms or none at all. Even though many others who contract it will feel like they’ve had symptoms similar to a severe cold or flu, there are those who will seize the opportunity to take advantage of small businesses by forcing them to choose between a fast settlement or a long expensive defense of a frivolous lawsuit.

Every year, millions of Americans get sick with colds, flus and other respiratory illnesses, yet these illnesses aren’t a basis for litigation — neither should the new coronavirus. Small business owners don’t have a team of lawyers on hand to guide them through the process of filing paperwork and arguing against predatory, self-serving lawsuits.

The legislature needs to act to protect small businesses that have taken responsible and guided steps to shield people who work and shop at their places of business from lawsuits. They should be protected from liability unless people can prove that the small business owner knowingly failed to develop and put a plan in place for reducing the risk of exposure to the coronavirus. In fact, Indiana law requires them to make a plan.

As part of Gov. Holcomb’s Back on Track plan, all small businesses in Indiana are required, at a minimum, to institute:

• An employee health screening process
• Enhanced cleaning and disinfecting protocols
• Enhanced accessibility of products to wash hands or use hand sanitizer
• Compliance with Centers for Disease Control and Prevention social distancing requirements.

This plan must be provided to employees and staff and posted publicly.

While these guidelines are instructive, for the most part, they are not legally binding. They shouldn’t be used as a free pass for people to take advantage of small businesses that are following protocols and doing everything they can think of to keep their customers and employees safe.

Here’s the thing: many Hoosier small business owners stay up at night worrying about these potentially business-ending lawsuits. They worry because it’s impossible for them to disprove that a defendant contracted the coronavirus at their place of business. That’s why it’s so important that the legislature take steps to protect responsible small business owners from this type of unnecessary litigation.

If Indiana lawmakers act, they will ensure Indiana’s road to recovery is smoother. It won’t be easy, but by shielding small business owners from frivolous lawsuits tied to an invisible virus spreading throughout our state, we can put Indiana’s economy back on track faster. Indiana small businesses already are struggling. Let’s give them the peace of mind that, during this scary and unprecedented time, at the very least, they’re protected against big lawsuits that threaten to close their doors for good.

Click here to read more from the October-November 2020 issue of Northwest Indiana Business Magazine.