Businesses Need the Confidence of a Safe Harbor
Editor's Note: Between the time this op-ed was written and its publication, the S.C. Senate changed the language from “safe harbor” to a stricter “immunity” standard. The author thanks the Senate for that action to strengthen protections for businesses.
By Jason Zacher
Senior Vice President, Greenville Chamber
Covid-19 has upended small business’ world in the past year.
The crisis of sudden business closure has turned into a longer-term starvation for many businesses as the pandemic lingers. Surveys by NFIB show that 10 percent of small businesses have already shut down and another 15 percent fear they will have to in the next six months.
South Carolina and the federal government (as well as Greenville County) have helped as best they could with grants and small loans to keep businesses afloat, and, in our state, customers are slowly returning.
Local business communities have tried to communicate with customers that it is safe to return by promoting the Greater Greenville Pledge, the Greater Grand Strand Promise, the Palmetto Priority Seal and other similar pledges across the state.
When it comes to confidence, the General Assembly should quickly follow dozens of states and take action to provide limited liability protections for our state’s businesses. These crucial protections should safeguard businesses, nonprofit organizations and educational institutions, as well as health care providers. They should not protect bad actors or those who are negligent in protecting employees and customers.
Businesses across the state are working around the clock to get our economy back up and running and to protect our citizens from Covid-19.
Manufacturers transformed operations overnight to produce personal protective equipment and items such as hand sanitizer. Transportation companies, farmers, and retailers have fought through the pandemic to keep our food supply stable. And, of course we are all indebted to the front-line health care workers and what they continue to do to protect our state as we watch Covid-19 cases spike, recede and spike again.
In countless conversations with small businesses over the last several months, fear of an unfounded lawsuit is consistently one of the top concerns for business owners and managers. “What happens if a customer comes in and infects my staff or other customers? What if an asymptomatic employee returns to work? Someone might sue, but how could they establish cause? What would legal fees do to my already shaky bottom line?”
Despite doing their best to follow local, state and federal guidelines, businesses may still be forced to defend frivolous lawsuits. Just the prospect of such litigation and the associated legal costs of defending a frivolous lawsuit is an impediment to reopening. Even still, winning such litigation could still force a small business to close its doors as the costs associated with the defense can be crippling. With the tenuous footing many small businesses remain on, many are one lawsuit away from closing for good.
An entrepreneur doesn’t have the time or the resources to monitor the onslaught of (sometimes conflicting) health and safety advice. The vast majority are doing the best they can, and it’s time for our General Assembly to step in and help.
Thankfully, Senate Majority Leader Shane Massey (R-Edgefield) and 13 other Senate Republicans filed S. 147 that would protect the businesses doing the best they can, while not giving bad actors a pass.
Trial attorneys across the state have predictably played down the risk of lawsuits, but absent a targeted safe harbor for those who follow safety guidelines, the fear and uncertainty from ever-present liability issues is a massive cloud hanging over our state’s economic recovery.
Television lawyers are already running commercials asking if you have been impacted by Covid-19 and the number of lawsuits is growing both in our state and those around us. While the numbers may remain low in our state, history clearly shows that anti-business lawsuits filed in one state spread to other states faster than Covid-19.
As Joseph Seiner, a law professor at UofSC, told CNN late last year: “You are going to see that number grow exponentially over the next six months to one year. I think you are on the front end of a tidal wave.”
The business community asks the full General Assembly to move quickly to enact these reasonable, temporary and common-sense liability protections – as introduced by Senator Massey in S. 147. We are specifically asking that these liability protections be limited in scope and preserve recourse for those harmed by any bad actors who engage in egregious misconduct.
The need for liability protections is clear, and if the General Assembly is as reliably (and as bipartisan) pro-job creation as it claims, these protections should require much less debate than they have sparked to date.