That is the topic of my latest Bloomberg column, here is one excerpt:
If an infected but asymptomatic worker shows up at work and sickens coworkers, for example, should the employer be liable? The answer is far from obvious. Liability exists not to shift unmanageable risk, but rather to induce management to take possible and prudent measures of precaution.
Another problem with liability law in this context is that the potential damages are high relative to the capitalization of most businesses. Covid-19 cases often pop up in chains; there have been many cases from a single conference, or in a single church choir, or on a single cruise ship. If a business or school is host to such a chain, it could be wiped out financially by lawsuits. In these cases the liability penalties do not have their intended deterrent effect because the money to lose simply isn’t there…
Another problem with liability in this setting has to do with jury expertise. Are random members of the public really the best people to determine acceptable levels of Covid-19 risk and appropriate employer precautions? Juries are better suited for more conventional applications of liability law, such as when the handyman fixing your roof falls off your rickety ladder. Given the unprecedented nature of the current situation, many Covid-19 risk questions require experts.
Finally, there is the issue of testing. Businesses could be of immeasurable help by testing their employees for Covid-19, as additional testing can help limit the spread of the virus (if only by indicating which workers should stay home or get treatment). Yet the available tests are highly imperfect, especially with false negatives. If businesses are liable for incorrect test results, and their possible practical implications, then business will likely not perform any tests at all, to the detriment of virtually everybody.
I recommend modest liability for some sectors, and zero liability, bundled with a New Zealand-like accident compensation system, for other sectors. And of course some very dangerous sectors should not be allowed to reopen at all, though I am more sympathetic to regional experimentation than are some people on Twitter.