In my previous LiNK article, I went out on a limb to predict control of the Montana Legislature and Governor’s Office (spoiler: a Republican trifecta). We’re still a number of weeks away from the election, but I remain confident in my claims. Especially my bet that because of the unprecedented economic trauma, the 2021 Legislative Session will be dominated by discussions of reducing spending and saving for the next rainy day. You can take that one to Vegas…when it’s safe to do so, of course.
I’m not sure how the 2021 Legislative Session will function, but neither are legislators. At the time of this writing a subcommittee of the Legislative Council Committee still has to discuss options for holding the session. Legislative staff has developed four options, based on protocols adopted in other states that held legislative sessions during the pandemic, ranging from a virtual session to a normal in-person session, and a couple hybrid options in between. Information below comes from the committee’s August 10th 2021 Session Scenarios and Decision Points report.
Regardless how the session functions, the content will be largely the same. Adjusting the tax code, supporting small business, addressing education issues, fostering economic development, and maintaining infrastructure to name a few. And, of course, the budget—six billion dollars that needs appropriated. Past legislators from Billings have hammered home the point that approximately one out of every six dollars the State collects comes from the Billings area. So, if my math is right, a fair, proportional distribution would mean that Billings has a billion dollars of state spending coming our direction for public safety, infrastructure, economic development…I’ve just been informed I shouldn’t hold my breath.
01 VIRTUAL SESSION
Majority of 150 members and staff participate remotely from their home. Gatherings limited to 10 or fewer people.
02 HYBRID VIRTUAL SESSION
Members and staff have option to participate remotely from their home or remotely from other locations in Helena. All public participation is remote. Group size limited to 50.
03 HYBRID, SOCIALLY DISTANCED SESSION
Members and staff have option to participate remotely from their home, remotely from locations around Helena, or in person at the Capitol. In-person and remote public participation is allowed, with limits on group size. Group size remains under 250.
04 REGULAR SESSION
Voluntary social distancing, most members and staff are in the Capitol. May still require some limitations and remote technology.
COVID LIABILITY PROTECTIONS
What won’t be business as usual for lawmakers is Covid-related legislation. Unless they hold a Special Session between this writing and January, for the first time in their political careers, legislators will need to discuss how to handle legal liability for businesses amid a global pandemic.
By now you’ve seen the headlines. Lowe’s is being sued for $20 million because of an unruly customer. A lawsuit against Safeway claims the company misled employees by posting a sign stating masks won’t protect you from contracting Covid—technically in line with CDC guidelines at the time. How will lawmakers ensure this doesn’t happen in Montana?
There is a specious argument against the necessity of passing Covid liability protections. It goes like this: essentially, the threshold to definitively prove someone who has had myriad interactions in their daily lives contracted Covid from a specific business would be next to impossible. When I squint my eyes and put on my thinking face, that sounds right—I can’t imagine how you could prove that someone contracted Covid from a particular business, space, venue, person, etc. But, I’m not a jury of 12 that could be swayed to believe the improbable.
As it turns out, there are lots of lawyers who are up to the challenge. According to the law firm Hunton Andrews Kurth, which has been tracking the number of Covid-19 complaints, there are 4,113 as of August 6th. Granted, not all complaints allege violations by businesses. Only 269 are consumer cases, including exposure to Covid-19 in a public place. In fact there are almost as many challenges to government stay-at-home orders and group gathering bans. While we have yet to see a flood of lawsuits against businesses, we’re a long way from being done with this pandemic. Just a few weeks ago, the nation’s top disease doc, Anthony Fauci, acknowledged this, saying, “We haven’t even begun to see the end of [Covid] yet.”
Despite the difficulty of proving Covid contraction, the reality is that some businesses will be faced with unreasonable legal disputes, costing them time, money, and with many on the brink of closure, possibly their business. Additionally, it’s not always about winning in court. Some cases will be settled out of court as businesses hedge toward a reduced accommodation for plaintiffs rather than risk crippling court decisions.
WHAT WE NEED
So what do we need to protect businesses? Certainly not blanket immunity as that would likely lead to businesses ignoring guidelines and prolonging the pandemic, which is ultimately bad for business. No, there aren’t many who argue for complete immunity. With most businesses already trying to do the right thing, we should make sure their good behavior is protected.
Senate Bill 4317, part of the HEALS package of Covid relief being discussed in Congress, would offer protection for businesses that have made reasonable efforts to comply with public health guidelines and haven’t exhibited willful misconduct or gross negligence. Including a sunset date of October of 2024 makes this targeted, temporary proposal a good one. And at the end of the day, most people agree businesses should be protected.
Nationally a survey of 800 registered voters by the Institute for Legal Reform found 61% support Covid lawsuit protections for businesses. Unsurprisingly, the business community is much more supportive than the population at large with the Montana Chamber finding that 92% of survey respondents support, and the Billings Chamber finding 89% support from survey respondents for Covid protections.
COVID LAWSUIT PROTECTIONS SUPPORT
61% – NATIONAL (Institute for Legal Reform)
92% – MONTANA (Montana Chamber)
89% – BILLINGS (Billings Chamber)
Even if Congress passes widely supported Covid liability protections for business at the federal level, Montana lawmakers should follow suit with states like Iowa and Utah to ensure those protections at the state level as well. Our citizen legislators often get the benefit of the doubt when it comes to decision-making. After all, they’re not professional politicians, proclaimed experts due to years of experience—and we kinda like it that way. In that respect, it shouldn’t be unreasonable for lawmakers to extend the same benefit of the doubt to our businesses, who are doing the best they can to abide by health guidelines and combat this pandemic so we can get back to BUSINESS AS USUAL.
Regardless how the session functions, the content will be largely the same. Adjusting the tax code, supporting small business, addressing education issues, fostering economic development, and maintaining infrastructure to name a few. Stay up-to-date with us during the session at BillingsChamber.com/blog.