Attorneys in the White House Counsel’s Office are reviewing the matter, but some administration officials have raised objections to the idea, including whether it would expose the federal government to legal claims, according to two of the people, who spoke on the condition of anonymity to discuss internal deliberations. Some White House advisers also have expressed concern that the plan might provoke a political firestorm.
“There’s political trouble here on multiple fronts,” said one person in close communication with the White House about the push. “There are a lot of questions about how to structure this.”
President Trump has pushed to “reopen” the country to reverse the economic devastation caused by the coronavirus pandemic, but numerous executives have told the White House they are hesitant to reopen stores given the potential legal risk, these people said. White House officials are likely to seek the “liability shield” as part of the next stimulus package being taken up by Congress, and they are likely to issue an executive order and unilateral regulatory changes to curtail firms’ liability, a senior administration official said. The exact details of such an order have not been determined, and planning remains in flux.
Trump and his chief economic adviser, Larry Kudlow, have publicly said the administration is working on the measure. The idea has met fierce resistance from congressional Democrats and workers’ groups, who warn it could allow employers to escape consequences for unsafe practices, complicating its likelihood of passage. Congressional Democrats are unlikely to approve the liability shield as part of the next round of negotiations.
It also has provoked internal debate among White House officials. Some small businesses have told White House advisers that the liability waiver is not a top priority for them and that they want the administration to instead focus on expanding the small-business loan program crucial to their survival.
At a White House news briefing earlier this month, Trump said the administration was exploring the idea of “trying to take liability away” from companies.
“We just don’t want that because we want the companies to open and to open strong,” he said.
Kudlow told reporters Friday that the White House does not believe businesses should be held liable if a customer later tests positive for the coronavirus. The federal government already has granted more limited liability exemptions for companies involved in producing and distributing key medical supplies, through a declaration signed last month by Health and Human Services Secretary Alex Azar.
Some powerful industry interests have pushed Congress to adopt similar measures. Earlier this month, a consortium representing some of the nation’s largest companies — including the International Foodservice Distributors Association, the International Franchise Association and the National Association of Convenience Stores — wrote to Senate Majority Leader Mitch McConnell (R-Ky.) arguing that their businesses were “good Samaritans” putting themselves at risk of frivolous lawsuits by trying to reopen.
“These businesses are committed to doing the right thing by remaining open for business and serving the American people during this crisis,” the letter said. “But there is an emerging threat to their ability to continue serving customers: efforts by some to take advantage of the current crisis to file unfounded lawsuits against them alleging that customers and employees were infected with COVID-19.”
But workers’ groups see the push as an attempt by business interests to shirk their responsibility to protect customers and workers, said Debbie Berkowitz, who worked at the Occupational Safety and Health Administration during the Obama administration and is now director of the worker safety and health program at the National Employment Law Project.
“It’s horrible,” Berkowitz said. “The idea companies can be held accountable is absolutely crucial to protecting workers … This is one of the most appalling things I’ve heard in the context of this crisis.”