Sides dig in on liability protections as firms reopen
WASHINGTON — Congressional leaders are girding for a fight over the reentry of millions of Americans into the workplace, with Senate Majority Leader Mitch McConnell insisting that employers be shielded from liability if their workers contract the coronavirus.
Democratic leaders have declared that they will oppose such blanket protections, putting Washington’s power brokers on opposite sides of a major issue that could have sweeping implications for health care and the economy in the coming months. The dispute has unleashed a frenzy of lobbying, with major industry groups, technology firms, insurers, manufacturers, labor unions and plaintiffs lawyers all squaring off.
The issue marks a sharp departure from the past six weeks, when lawmakers from both parties came together to approve nearly $3 trillion in emergency funds as Americans hunkered down during the pandemic. Now, lawmakers are arguing over what the rules should be when millions of Americans return to the workplace.
With President Donald Trump increasingly focused on pushing businesses to reopen, the Republican-led Senate is preparing to reconvene today. Key GOP senators are circulating drafts of legislation to set up legal pro
tections they say would give businesses the confidence to reopen without worrying about lawsuits.
“It seems intuitive to me that if you’re a marginal small business and you’re making the decision whether to hang in there and try to survive, or whether you’re just going to give up and either declare bankruptcy or just become insolvent, that this … could make the difference,” said Sen. John Cornyn, R-Texas.
Cornyn is working on legislation that would shield businesses from liability over coronavirus-related claims as long as the businesses comply with government guidelines.
The Democratic-run House remains largely shuttered for at least another week, with leaders citing the health risks. And Democratic leaders want to focus their next legislative effort on pumping more money into the economy, with House Speaker Nancy Pelosi, D-Calif., pointing to $1 trillion in needs for cities and states.
But for McConnell, R-Ky., one of the biggest concerns appears to be the threat of lawsuits against businesses. He has described the potential for a “second pandemic” of litigation, and he and House Minority Leader Kevin McCarthy, R-Calif., say discussion of liability protections will be “absolutely essential.” Democratic leaders, however, have not expressed any interest in advancing such protections at a time when workers are risking their health by laboring at manufacturing jobs, grocery stores, hospitals and other businesses that have stayed open throughout the crisis.
“Providing some kind of blanket immunity shield is an idea that’s the result of the majority leader’s imaginary bogeyman of a flood of lawsuits, a parade of horribles that is a political ploy,” said Sen. Richard Blumenthal, D-Conn. He said the proposal would be “a nonstarter.”
Lawmakers in both parties, along with Trump administration officials, agree that Congress must attempt to pass additional measures to address the pandemic, as the economy still reels after more than 30 million Americans filed unemployment claims in six weeks. But reaching consensus between the House and Senate could prove much more difficult than previous efforts.
As the GOP demands corporate liability protection, Democrats have demanded more assistance for cities and states, which McConnell said he won’t agree to without the liability protections being included.
For now, public posturing has taken the place of any serious bipartisan negotiations.
It’s not yet clear what types of legal liability proposals Republicans and the Trump administration might coalesce around. Cornyn and other Republicans are looking for ways to shield businesses and health providers from coronavirus-related claims while making exceptions for gross negligence, and they’re also considering protections for makers of protective gear. In earlier bills, Congress already approved some protections for makers of protective masks and for volunteer health workers. Cornyn also suggested the possibility of establishing a federal fund that would pay out claims.
“We’re pretty strongly exploring the breadth and depth of liability protection for businesses and the like as we go through reopening and sustaining opening through the pendency of coronavirus prior to the introduction of a vaccine,” said a senior administration official, speaking on condition of anonymity to describe confidential deliberations.
LOBBYING EFFORTS
The debate over legal liability and tort reform has divided the parties for years, with Democrats accusing Republicans of doing the bidding of big business while Republicans contend that Democrats are in the pocket of trial lawyers. Powerful business lobbies like the Chamber of Commerce, the National Association of Manufacturers and the insurance industry are now lobbying heavily in support of liability shields for businesses, while trial lawyer associations, unions and groups representing plaintiffs and consumers are pressuring Democrats to oppose any such measures.
A letter sent last week to congressional leaders and signed by scores of unions and advocacy and consumer groups, including the AFL-CIO and the National Consumers League, said they “strongly oppose any legislation that would establish nationwide immunity for businesses that operate in an unreasonably unsafe manner, causing returning workers and consumers to risk COVID-19 infection.”
Linda Lipsen, chief executive of the trial lawyers lobby American Association for Justice, alleged that Republicans and business groups are trying to use the pandemic to advance a long-standing agenda of limiting people’s ability to sue when they are harmed.
“Sen. McConnell has been promoting immunity for companies that act unreasonably for over 30 years, and this is an extension of that,” Lipsen said. “This move to hold this covid package hostage with his agenda items is unpatriotic.”
Multiple lawsuits have already been filed against businesses including Walmart, nursing homes, insurers and others. More are on the way. Ads from plaintiffs attorneys are popping up on late-night TV, seeking clients who’ve suffered damages in some way from the coronavirus outbreak.
A group called Top Class Actions that runs a website funded by attorneys is advertising multiple investigations related to the coronavirus, on issues involving denied refunds for college courses, canceled flights, and faulty or lacking personal protective equipment, among other things.
Scott Hardy, the group’s president, said the group has received more than 10,000 submissions in just the past month related to the coronavirus.
Hardy pointed to the example of meatpacking facilities where workers have been required to stay on the job — in some cases, they say, without appropriate protective gear or in unsafe conditions. Some have fallen ill as a result.
“We can’t be taking these rights away from all of these employees who are doing their best, these essential workers who are doing their best to help us,” Hardy said.
BUSINESS GROUPS
Republicans and business groups dispute accusations that they are trying to prevent workers or consumers from filing legitimate claims, or that they are looking to protect employers who have actually been negligent.
Instead, business officials say they are advancing limited sets of proposals aimed specifically at setting up reasonable protections for employers and health care workers in the context of the pandemic.
The National Association of Manufacturers, for instance, is asking Congress to limit lawsuits to instances in which a manufacturer had actual knowledge that workers could be exposed to the coronavirus and consciously disregarded that information or acted with reckless indifference. The group is also seeking protections to ensure employers can collect and exchange critical information about employees’ health status, and it’s asking for liability shields for manufacturers that are producing protective gear such as respirators or masks.
“If we are to get the country back to work and get our economy going again, employers have to have the confidence they can restart their operations or ramp their operations back up if they’ve been working all along,” said Linda Kelly, general counsel for the National Association of Manufacturers.
The U.S. Chamber of Commerce is seeking some similar measures, including a “safe harbor” against customer lawsuits for businesses that have followed public health guidelines, as well as protections for health care workers and doctors on the front lines.
“We’re not looking for permanent tort reforms here,” said Neil Bradley, executive vice president of the U.S. Chamber of Commerce. “We really do believe this should be focused on businesses and health care providers who are following, to the best of their ability, the public health guidance. They should not be subject to legal liability.”