Arkansas Democrat-Gazette

Sides dig in on liability protection­s as firms reopen

- ERICA WERNER AND TOM HAMBURGER

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.”

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