Wayne Hoffman

Wayne Hoffman

Wayne Hoffman

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Supporters of legislation introduced during this week’s special session say it will protect businesses from COVID-19 lawsuits. Supporters are wrong: If anything, the legislation will invite lawsuits, especially those aimed at small businesses.

The bill’s trouble is contained in two words: “good faith.” The legislation says, essentially, Idaho businesses can have immunity from lawsuits from someone claiming to have contracted COVID-19 in their establishments, as long as those businesses make a “good faith” effort to comply with government orders and mandates.

But no one really knows what a “good faith” effort is. For example, take existing mask mandates, which businesses are now struggling to manage. Does a good faith effort mean strict enforcement for mask-wearing policies, such that no one is exempt? Does it require employees to forcibly remove mask scofflaws from the premises? One thing is certain: If this legislation becomes law, expect more confrontations between employees and customers, because now there is a prize — lawsuit immunity — on the line.

Even if businesses do all things to comply with government orders, “good faith” is in the eye of the beholder. It would be for a jury to decide whether a business’ actions were good enough.

Larger businesses might be willing to endure a lawsuit in which jurors were charged with vetting the earnestness of a business’s compliance with government orders. That is probably why the Idaho Association of Commerce and Industry (IACI) — the state’s big business lobby and financial benefactor for numerous Idaho politicians — is behind the measure. Many of IACI’s big business members have lawyers on the payroll or on retainer and can financially tolerate lawsuits.

Sadly, smaller companies are not similarly situated. They might have difficulties and a shortage of money to mount a defense just so a jury can rule on whether the businesses’ efforts were enough. But that is none of IACI’s concern.

Compliance with mask mandates is one thing. What of future mandates? Suppose the government requires people to get a COVID-19 vaccine when it becomes available. Or participate in contact tracing protocols. What must a business do to comply with those government edicts? Will businesses have to ask customers for vaccine verification data? Will businesses feel compelled to keep a record of everyone who crosses the businesses’ threshold?

Perhaps the state of Idaho or its political subdivisions would never consider such sweeping and intrusive policies. But under the Gem State legislation being considered, the edicts do not need to come from officials here in Idaho. Such requirements could come from the federal government, for example, from a Joe Biden administration, if there is one.

Idaho businesses would be bound by law to enforce such requirements, whatever they may be, from wherever they may originate, if they want protection from lawsuits. The Gem State bill then allows the government to issue all manner of mandates and then use fear and intimidation in order to control businesses so that they do the government’s bidding.

Interestingly enough, Utah’s Legislature passed a much simpler immunity law that highlighted the implausibility of being able to prove that a person contracted COVID-19 from a particular place. The law declares all businesses immune from such lawsuits. The law doesn’t contain superfluous wording that provides immunity so long as there is compliance with government edicts.

I question the need for this kind of legislation in the first place. People and businesses are free to contract with one another. A notice on the door that says “you know the risks associated with your entry” should be sufficient. Such a sign notifies the public that the business cannot be held liable for any airborne illness — be it COVID-19 or the flu.

However, if lawmakers really want to help businesses avoid frivolous, costly lawsuits, it doesn’t take very much to do that. If providing immunity is the right thing to do, it shouldn’t come with unfollowable and unfathomable strings and conditions.

Wayne Hoffman is the president of the Idaho Freedom Foundation. Email him at wayne@idahofreedom.net.

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