As governors start lifting stay-at-home orders, businesses, schools, non-profits and houses of worship are trying to figure out how to reopen safely. A driving concern for many employers has been the fear of getting slapped with lawsuits if their workers or customers contract COVID-19.

It’s a reasonable fear; the pandemic is already inflaming America’s legendary litigiousness. Hundreds of COVID-19 lawsuits have already been filed. Law firms tout their “Coronavirus Litigation Task Force” as they troll for clients. Employees and customers who do not have COVID-19 have sued businesses because they feared they were at risk of catching it. Even some factories deemed “essential” have been labeled “public nuisances” for asking courts to determine the safety measures businesses must take.

Judges are not qualified to make these calls; government health experts are. But we’re in uncharted territory. America has never experienced anything like this pandemic or virus-induced freeze on economic and social activity. The experience over the past three months has been that federal and state public health guidance is vague, variable and sometimes contradictory.

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