The move in Congress is of particular concern to labor advocates, given that creating a uniform federal workplace safety standard for the pandemic is expected to be a priority for the Biden administration as it seeks to curb transmission of the coronavirus in workplaces.
“This proposal strips all covid-related worker safety protections away from workers, including protection from retaliation during the worst occupational health crisis in our lifetimes,” said Deborah Berkowitz, a former Occupational Safety and Health Administration official now with the National Employment Law Project. “This bill would undermine all efforts to mitigate the spread of covid at work and back out into the public, and it will lead to more illness and death.”
Business lobbying groups such as the U.S. Chamber of Commerce say the provision is important to help companies avoid unnecessary fines and regulation during the crisis.
The provision is tucked near the end of a coronavirus stimulus bill that has been scrutinized mostly for the way it seeks to protect companies from lawsuits filed by workers and consumers seeking to hold them accountable for the spread of infections.
Despite being billed as a bipartisan effort — Sen. Joe Manchin III (D-W.Va.) has signed off on the plan along with a group of Republicans — the text of the provision is mostly unchanged from the corporate liability bill released over the summer by Senate Republicans, led by Sen. John Cornyn (R-Tex.).
The provision states that “an employer shall not be subject to any enforcement proceeding or liability under any provision of a covered federal employment law” if the employer meets a few conditions, such as following a standard from state, local or federal government and “exploring options to comply with such obligations.”
Legal experts said the provision would effectively strip OSHA of its ability to enforce worker protections during the pandemic, by giving employers an exemption from enforcement if they make an effort to be in line with other, potentially less stringent guidelines from local authorities. In places where state-level OSHA regulations are stronger than the federal ones, such as Virginia and California, it could weaken attempts at enforcement as well.
“It very seriously undercuts if not completely eviscerates OSHA and the states that enforce their own state OSHA mandates from proceeding at all to protect workers,” said Michael Felsen, who spent 39 years at the Labor Department, most recently as regional solicitor for the New England area. “If we care about the safety and health of our workers and all of us, there needs to be a much greater emphasis on the importance of employers doing everything they can to protect their workers, not just: ‘Hey, I took a look at it. I thought about it. I explored some options.’ That’s basically what this is calling for.”
Cornyn spokesman Drew Brandewie disagreed, saying that the bill would still permit government regulators to go after the worst offenders. “Governments can still go after unsafe businesses,” Brandewie said in a statement. “But under the bill they cannot go after businesses for OSHA violations who were simply trying to comply with covid-related special government health guidelines.”
He gave the example of a church forced to close a wheelchair-accessible entrance to adhere to local coronavirus restrictions, only to face penalties from the federal government.
The bill also undercuts some federal enforcement of key civil rights laws, such as Title III of the Americans With Disabilities Act, which prohibits discrimination on the basis of disability in public places such as offices, restaurants, schools, hotels and movie theaters, limiting liability for any action taken by employers “regarding the coronavirus” if employers believe there is a health-related risk that prevents them from modifying the policy. The bill also similarly limits enforcement of Title II of the Civil Rights Act — a bedrock provision that prohibits racial, religious and nationality-based discrimination in public accommodations such as hotels and lunch counters.
“Black, Latino and native people, immigrants, women, seniors, people with disabilities — they’ve all been hardest hit by this pandemic,” said Gaylynn Burroughs, senior counsel at the Leadership Conference on Civil and Human Rights, a coalition of more than 200 civil rights organizations. “They think our federal civil rights and worker protections are even more essential in this crisis to safeguard fairness, safety and dignity, in addition to economic security.”
Jennifer Mathis, a director at the Bazelon Center for Mental Health Law, said easing up on businesses’ disability rights compliance would have a “devastating impact,” particularly for people in institutionalized care.
“Immunizing those facilities from liability would leave residents who are at risk of dying due to basic failures to protect people — including failure to ensure there’s PPE [personal protective equipment], failure to ensure adequate distancing, failure to have protocols to minimize staff moving across different units and different facilities and accelerating discharges — those things would leave people with disabilities without any protection in this life-and-death situation,” Mathis said.
The bill’s political prospects appear to be dim. The liability measures have drawn almost no support from Democrats, although they are paired with aid for state and local governments struggling to meet their budgets during the crisis.
Stimulus negotiations appear to be coalescing around another bill that would renew funding for unemployment programs and aid for businesses. If Democrats are willing to support the current stimulus package without the aid they say is necessary to prevent significant job loss from shrinking state and local budgets, then the liability issue may also get left by the wayside.
The U.S. Chamber of Commerce has been one of the most prominent supporters of the corporate liability measure, and Harold Kim, the president of its Institute for Legal Reform, said it had provided recommendations and a framework to the Republican senators who drafted the measure.
He said the provisions that would weaken federal enforcement of the protections were a reflection of businesses’ concerns in the spring, amid a still new and confusing public health crisis, that they could find themselves in a regulatory tangle as they tried to reopen.
One scenario he brought up was the challenges facing a business trying to reopen but wanting to protect workers more at risk of coronavirus transmission — such as those older than 65 — without triggering age- or health-discrimination complaints.
The Chamber also pointed to an example of a lawsuit filed in federal court in Pennsylvania by a group of plaintiffs who allege that a grocery store’s mask mandate violated their disability rights, as an example of the type of litigation that could be curtailed.
“The gist of this section is to ensure that an employer that is trying to follow applicable guidance shouldn’t have liability when it comes to existing federal employment law,” he said. “Not having a national, uniform, one-size-fits-all approach has been one of the challenges this year.”
But critics warn the effort could undercut a federal attempt at a more stringent and uniform approach in the new year.
“This will tie the hands of a Biden administration and make us all less safe as we face the worst-case surges we’ve seen in the duration of the pandemic,” Mary Kay Henry, the president of the Service Employees International Union, told reporters on a call.