McConnell’s warning of lawsuit ‘epidemic’ undercut by lack of litigation

Under Senate Republicans’ proposal, employers could only be held liable if they didn’t make “reasonable efforts” to follow public health guidelines and “engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus,” according to the text of the legislation released Monday.

“No bill will pass the Senate without liability protection for everyone related to the coronavirus,” McConnell told reporters this month. “Nobody should have to face an epidemic of lawsuits on the heels of the pandemic that we already have related to the coronavirus.”

Democrats remain opposed to the liability protections. They advocate instead for a provision that would direct the Labor Department’s Occupational Safety and Health Administration, the agency responsible for monitoring workplace safety, to issue a federal standard that would establish protections for those exposed to airborne infectious diseases. Such language was included in a previous coronavirus aid package, but the agency has yet to produce a standard.

“We think there’s a path to talk about protecting businesses and workers and customers who come in, and that is our OSHA provision,” House Speaker Nancy Pelosi said this month.

Businesses currently have to comply with a mixture of state- and local-level public health guidelines. Having a federal standard would streamline things for employers so “they know what they need to do,” Sen. Patty Murray of Washington, the top Democrat on the HELP Committee, said.

“They don’t want an environment that makes them less competitive if they’re doing the right thing; what they want is standards so that everybody can live up to the same standards and make sure workers are protected,” Murray said. “This is important to their bottom line.”

The issue is starting to garner more bipartisan support: A group of 10 House Republicans including Rep. David McKinley of West Virginia sent a letter to Minority Leader Kevin McCarthy on July 14 proposing the packaging of liability protections with an Emergency Temporary Infectious Disease Standard from OSHA in the next coronavirus aid package.

“Simply put, if businesses abide by the OSHA standards, they should be protected by baseless lawsuits,” they wrote.

There are already several barriers to filing coronavirus-related claims against companies, including forced arbitration and heightened standards. When combined with the broad language in McConnell’s proposal, including the requirement that employers make only “a reasonable effort” to comply with public health guidelines, the liability protections “would make it virtually impossible for workers to hold corporate employers accountable,” said Berner of SEIU.

“The safe harbor here is basically a safe harbor for any business doing anything,” Public Citizen President Robert Weissman said.

Right now, the cases that do make it through carry outsize importance, advocates say. Not only do they have the potential to improve conditions for thousands of workers and consumers, but they act as a deterrent to help keep companies in line at a time when federal enforcement is relatively lax — in part, because of the absence of an OSHA standard.

Of the thousands of complaints that have been filed with OSHA, just one action had been brought, Labor Secretary Eugene Scalia testified in June.

“There’s zero happening from the federal government for enforcement,” Weissman said. “So workers really do need access to the courts.”

Virginia became the first state to implement its own emergency standard this month, adopted July 15 following an executive order from Gov. Ralph Northam, a Democrat, and scheduled to go into effect the week of July 27. The rule was prompted, in large part, by a lack of OSHA enforcement, Northam’s office said.

Should liability protections be enacted, advocates warn, they also risk exacerbating racial inequities, since workers of color are overrepresented in frontline careers.

“Bad policy choices and years of discrimination and structural barriers to economic opportunity have left Black and brown people more likely to contract and die from Covid-19,” said LaShawn Warren, executive vice president of government affairs at the Leadership Conference on Civil and Human Rights. “And these are the very same people who will be most harmed by giving businesses sweeping immunity from accountability — low-wage workers, women of color, Black and brown people.”

Management-side lawyers say employers are already doing everything in their power to keep their workers safe, rendering an OSHA standard superfluous — not to mention difficult to draft, given the high degree of uncertainty surrounding Covid-19.

“I don’t think an ETS from OSHA is warranted in this situation given the extensive efforts that employers are taking and the changing nature of the pandemic and what we know about the coronavirus,” said Hammock, the former OSHA official.

They and Republicans express concern that, without protection from litigation, businesses will be hesitant to reopen, thus halting the economy’s recovery.

“Employers are trying to adapt, the government’s trying to adapt, and in the middle of all that you have these lawsuits being filed as well — another hurdle for employers that they have to handle with everything else that’s going on,” said Daniel Deacon, an employment defense attorney with Conn Maciel Carey LLP.

But Democrats maintain that without an ETS, workers’ and customers’ fear of exposure will keep them from returning to businesses and prevent the economy from making a robust comeback.

“Workers are less likely to go back to work … if they have reason to believe that employment will endanger their health,” Weissman said. “And it is a certainty that consumers will not go back to the marketplace, will not go back to businesses, if they don’t believe those establishments are operating safely.”

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