Opponents argue a liability shield could protect companies that don’t take adequate measures to address the safety and health of their workers and customers.
As states rush to reopen and lift restrictions on businesses, companies are pressuring employees to return to the job even though workers continue to fall sick with COVID-19. While Democrats have pushed for greater protections and hazard pay for those workers, Republicans are looking for ways to protect companies from lawsuits if their employees or customers contract the coronavirus.
Senate Majority Leader Mitch McConnell of Kentucky and Sen. John Cornyn of Texas are working on legislation that would set up legal protections for businesses in order to protect them from liability lawsuits over coronavirus-related claims, so long as they comply with government guidelines.
“Our legislation is going to create a legal safe harbor for businesses, nonprofits, governments and workers and schools who are following public health guidelines,” McConnell said on the floor of the Senate on Tuesday.
McConnell and Cornyn say their aim is to provide businesses the confidence and protection to reopen without the specter of lawsuits, but labor unions and Democrats have been vocal in their opposition and have said they will oppose any blanket protections. They argue a liability shield could protect companies that don’t take adequate measures to address the safety and health of their workers and customers.
Why Is McConnell So Eager to Protect Businesses from Lawsuits?
McConnell is under enormous pressure from lobbyists like the U.S. Chamber of Commerce and industry groups representing doctors, hospitals, manufacturers and business owners—some of whom he counts as campaign donors. McConnell, with the support of the Trump administration, has said for weeks that he will “insist” liability protections be included in any future coronavirus relief bill.
McConnell has claimed that not protecting business owners would “dramatically slow” the economic recovery and could prompt overzealous trial lawyers from pursuing legal action. “The next pandemic coming will be the lawsuit pandemic in the wake of this one. So we need to prevent that now when we have the opportunity to do it,” McConnell told Politico in April.
What Exactly Do These Business Groups and Lobbyists Want?
Broadly speaking, these groups want to make it harder for employees or customers to sue a business owner if they are exposed to or contract COVID-19 while at work. Hospitals are also seeking protections against lawsuits from patients who might inadvertently contract COVID-19 while at their facilities.
They argue, however, that this wouldn’t provide blanket protection from all legal actions.
“We’re not asking for some type of immunity, we’re asking for a safe harbor,” Neil Bradley, executive vice president and chief policy officer at the U.S. Chamber of Commerce, told NPR. “If a business is grossly negligent, or if they are willfully forcing workers to work in unsafe conditions, then they don’t have that liability protection. No one wants to protect bad actors here, but businesses that are trying to do the right things shouldn’t be second-guessed a year later in a court of law.”
McConnell has echoed those claims. “To be clear now, we’re not talking about immunity from lawsuits. There will be accountability for actual gross negligence and intentional misconduct. That will continue,” he said on Tuesday.
The National Association of Manufacturers, meanwhile, wants to limit state or federal lawsuits seeking damages from exposure to COVID-19 to cases where “the manufacturer had actual knowledge that an individual would be exposed to COVID-19 and acted with reckless indifference or conscious disregard as to whether they would contract it.”
Business groups also say that the liability protections would be temporary and limited only to the coronavirus crisis, but that hasn’t assuaged opponents’ concerns.
What’s The Problem With These Protections?
Labor leaders, advocates, and Democrats argue that shielding businesses from liability removes a major form of accountability and makes it harder for workers to pursue legitimate claims. Republicans say that businesses would still have to follow federal and local guidelines, such as mandating masks and keeping employees and customers six feet apart, but labor unions argue that limiting business liability could reward companies that don’t provide proper protections for their workers and customers.
It’s unclear, for example, whether companies would have to provide workers with personal protective equipment (PPE) to protect against infection—a fact Senate Minority Leader Chuck Schumer pointed out last month.
“Instead of making sure businesses have PPE [personal protective equipment] for their employees, [Mitch] McConnell wants to make it harder for workers to show up at their jobs and to hold their employers accountable for providing safe working conditions,” Schumer said during an April call with reporters. “Instead of fighting for more testing to help everyone working on the front lines, Sen. McConnell is fighting to protect corporate executives.”
Schumer’s concerns are perhaps best exemplified by the ongoing saga occurring at the nation’s meatpacking plants. Dozens of meatpacking plants across the country have experienced outbreaks of COVID-19 in their workforce, leading to the deaths of at least 30 workers. Roughly 10,000 workers in total have been infected or exposed to COVID-19, according to the United Food and Commercial Workers (UFCW) International Union, which represents more than 250,000 meatpacking and food processing workers across the country.
Despite the ongoing nature of those outbreaks, workers at those plants have been forced to go back to work after President Trump invoked the Defense Production Act last month to compel plants to stay open. The president’s order did not specify what, if any, additional precautions companies should take to protect workers and the Agriculture Department has deferred to the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA). OSHA has not imposed mandatory rules and has instead only issued non-binding recommendations.
There have already been several lawsuits filed against meat processing companies. Smithfield Foods is being sued over claims that it failed to protect workers at a Missouri plant by forcing them to work “shoulder to shoulder” without providing adequate personal protection equipment. The families of two other deceased meat plant workers have also filed lawsuits against their family members’ former employers, alleging the companies ignored safety guidelines.
If McConnell’s liability protection goes into effect, workers—or families of workers—who fall sick at those plants and believe their company ignored safety guidelines or didn’t take adequate measures to protect them would have little legal recourse.
A coalition of labor and advocacy groups, including the AFL-CIO, NAACP, and the National Consumers League, have cited this concern as their reason for opposing McConnell’s proposal. “Removing legal accountability for businesses not only would jeopardize the health and safety of workers, it would also jeopardize everyone who enters those workplaces,” the group wrote in an April 29 letter to congressional leaders.
They also believe such protections would actually harm the nation’s economy, rather than help it, as McConnell suggests.
“Any recovery requires the public to have confidence that businesses are operating as safely as possible. Establishing legal immunity for businesses that operate unsafely would do the opposite of instilling public confidence,” the group wrote. “Instead, it would introduce new anxieties to an already highly-anxious public. And it would have real-life consequences for every community, since legal liability is one of the most powerful incentives we have to ensure that businesses operate safely. When workplaces are not properly protected, patients, customers, clients, and the community are all at risk.”
Here’s Where It Gets More Complicated
In recent weeks, hospitals have emerged as a key proponent of liability protections, further complicating the fight. They’ve warned that they will be slow to resume elective procedures—a key source of revenue without which they could suffer a financial collapse—unless they receive assurances from Congress that they won’t be sued by patients and their own staff if they contract the coronavirus during those visits. If they don’t get such protections, hospitals argue they will have to limit how many elective procedures they do in order to protect themselves from lawsuits, which could delay care for patients.
Medical groups say they’re facing unprecedented new risks as they combat the coronavirus, such as being blamed for inaccurate COVID-19 tests; ventilator shortages that could force facilities and physicians to ration care; shortages of safety equipment that could lead to the transmission of the virus between patients; physicians and other clinicians providing treatment or care outside of their general practice area; and delays in treatment for patients with conditions other than coronavirus. With the rise of telehealth and virtual appointments, doctors are also now diagnosing patients without seeing them in-person, which could lead to misdiagnosis, opening the door to lawsuits.
“In these and other scenarios, physicians and other clinicians face the threat of medical liability lawsuits due to circumstances that are beyond their control,” dozens of medical groups, including the American Medical Association, wrote in an April letter to Congress. “These lawsuits may come months or even years after the current ordeal, when the public memory of their sacrifices may be forgotten.”
Cornyn and McConnell have sought to use hospitals’ fears as a rallying cry for their liability protections. “We simply cannot allow a flood of frivolous lawsuits to harm our incredible health care workers or stunt our economic recovery,” Cornyn said on the Senate floor on Monday.
Democrats also oppose sweeping protections for hospitals, arguing it would make it harder for patients to get compensation when there’s a severe issue.
“I think this parade of lawsuits that the majority leader envisions is really an imaginary boogeyman,” Sen. Richard Blumenthal of Connecticut told POLITICO. “I have confidence that businesses and employers have nothing to fear if they simply follow the basic standard of care that applies to their industries.”
On Tuesday, the Senate Judiciary Committee called on the CDC and OSHA to establish national safety standards for industries during the coronavirus pandemic. Sen. Lindsey Graham, Republican of South Carolina, said such guidelines would be critical for both the physical and legal safety of workers and businesses.
“Seems to me that one primary goal out of this hearing is to get the standards in place for business, for universities, for schools, whether they come from the CDC, OSHA, they need to be out there so people can understand what’s expected of them,” Graham said. “And if they do what’s expected, they don’t need to worry about getting sued. The big hole in the puzzle right now is the standard.”