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Liability shield is a stumbling block as lawmakers debate relief

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WASHINGTON >> Calls to protect corporations and schools from legal blame if workers fall ill from COVID-19 contracted on the job have incited a growing backlash as Congress and the White House negotiate over liability protections in economic relief legislation.

Businesses, hospitals, schools and the trade groups that represent them have pushed for any relief package to include protections from COVID-related lawsuits. But so far, there has been little sign of a surge in litigation as the economy reopens, and prominent voices have opposed such a measure, arguing that liability shields are unfair to workers and that businesses must take responsibility to keep them safe.

The issue has spilled into the world of sports. Today, College Athlete Unity, an organization that represents thousands of athletes at universities, wrote a letter to the NCAA and the Big Ten Conference urging them to revise plans for resuming fall sports. Among the proposals was to ban the use of COVID-19 waivers.

The players associations for the NFL, NBA, NHL, Major League Baseball and Major League Soccer have made a similar plea. In a letter to top Republican and Democratic lawmakers last Friday, they said that inserting liability protections in the legislation would be wrong.

“There is still much that is unknown about this disease, how it spreads, and the long term consequences of exposure,” they wrote, arguing it was unclear how such legislation would affect safety agreements that have been made between employers and employees. “It makes little sense during these uncertain times to both ask employees to return to work and, at the same time, accept all the risk for doing so.”

Some businesses — including salons, amusement parks, gyms and even President Donald Trump’s campaign rallies — have required those who come in their doors to promise not to sue if they contract the virus. But a Republican proposal would offer a much bigger shield: It would provide five years of legal protection for businesses, hospitals, schools and nonprofits that make “reasonable efforts” to comply with government standards to protect their workers and customers from coronavirus-related lawsuits.

Neil Bradley, executive vice president and chief policy officer of the U.S. Chamber of Commerce, said that lawsuits have already been filed and that the number will grow as the economy continues to reopen.

“The right thing to do is provide an incentive for employers and universities to make sure they are adopting the right public health measures and give them the confidence that, having done so, they are not going to be dragged into court and second-guessed years from now,” he said.

The Republican proposal would funnel all coronavirus-related work claims into the federal courts, where plaintiffs would have the right to bring personal injury and medical liability suits until 2024 or the coronavirus is no longer a public health emergency, whichever comes first.

But those suits would face a high bar. Plaintiffs would need to prove that their illness resulted from gross negligence or willful misconduct on the part of the employer, not just carelessness or a lack of resources, like protective equipment. It would also limit lawsuits relating to coronavirus testing and personal protective equipment, if that equipment meets the standards of the Food and Drug Administration.

Damages would be capped, and there is a provision that would make some employees think twice about suing: Those who bring claims without merit could be subject to punitive damages and civil penalties of up to $50,000.

Many unions and workers rights advocates have objected to the proposal, saying that it would result in negligent behavior on the part of businesses and schools and lead to more coronavirus cases and more deaths.

The issue remains a contentious one in Washington, even as Sen. Mitch McConnell, R-Ky., the majority leader, insists that he will not allow any legislation to pass without the protections he has outlined.

“This is not just liability protection for businesses — they’re included along with everyone else dealing with this brand-new disease,” McConnell told CNBC late last month. “Unless you’re grossly negligent or engage in intentional misbehavior, you’ll be covered. And it will be in a bill that passes the Senate.”

The White House has been noncommittal, however. Trump has said he is focused on eviction protections and unemployment benefits. And in a briefing July 31, the White House press secretary, Kayleigh McEnany, said a liability protection provision was McConnell’s priority and reiterated Trump’s focus on unemployment.

Congressional Democrats have argued that the administration should focus instead on strengthening workplace protections through the Occupational Safety and Health Administration, and it remains unclear whether they could be enticed to accept some version of a liability waiver.

House Speaker Nancy Pelosi said last month that a liability shield could force workers to choose between their health and their financial well-being.

“If you get sick, you have no recourse because we’ve given the employer protection,” Pelosi, D-Calif., said on “Face the Nation” on July 26. “And if you don’t go to work because you’re afraid of being sick and you have that job opportunity you don’t get unemployment insurance. This is so unfair.”

Polls have shown conflicting results on the public’s embrace of such a shield. A survey for the American Association for Justice, a group representing plaintiffs’ lawyers, showed nearly two-thirds of the public opposed such protections, while a U.S. Chamber of Commerce-funded poll found that 61% supported congressional protections from coronavirus-related lawsuits.

Julia Duncan, the senior director of government affairs at the American Association for Justice, said liability protections would take away an important tool for some of the country’s lowest-paid workers, who are disproportionately people of color, to secure more protections from big employers such as Amazon, Tyson Foods and McDonald’s.

“Bringing a lawsuit is the only leverage they have to say, ‘I would like to be treated safer, I would like to be provided protective equipment, I would like to be provided time to wash my hands,’” Duncan said. “And if these lawsuits go away, companies like Amazon and Tyson are going to be able to do anything and not be held to account.”

Other critics of the proposal say it could infringe on the rights of states, which typically regulate these kinds of legal protections. Many states, including Kentucky, Alaska and Missouri, have already expanded legal protections for businesses or offered expanded workers’ compensation to essential workers who contract coronavirus at work.

“Whatever happened to conservatives’ belief in states’ rights?” Amy Dru Stanley, a history professor at the University of Chicago, wrote in an op-ed in The Washington Post.

Opponents of the provision, including the American Association of Justice, also argue that the United States has not yet seen a profusion of coronavirus-related lawsuits, because the requirements for bringing such a suit are already high. Companies that act reasonably are protected from such lawsuits, and plaintiffs have to prove that they contracted the coronavirus at the place of business, not somewhere else, they say.

Bradley, the Chamber of Commerce vice president, said some trial lawyers had already started advertising about coronavirus-related lawsuits. “You’re not advertising to attract clients to sue someone unless you think there’s an opportunity to sue,” he said.

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