Or should there be a some way to shield employers because the government said it was okay to open in the first place? Especially because these businesses are already struggling in the coronavirus economy?
This scenario encapsulates a long-running debate between Democrats and Republicans, one that gets at the heart of the governing philosophies: Does protecting industry protect workers? Whether businesses should be protected from coronavirus-related litigation from employees and customers is becoming a major battle as Congress debates the next phase of coronavirus relief.
Senate Majority Leader Mitch McConnell (R-Ky.) is pushing hard to tie any money states get from Congress to making sure they stop coronavirus-related lawsuits against businesses. He and the White House fear what he’s called a “second pandemic” of lawsuits as employees return to work, and he has said having these protections is a “red line” for any money to states and local governments — which is aid he was skeptical of in the first place.
Democratic leaders say that’s the opposite of what’s needed right now. After months out of work, employees may not feel as though they have any other choice but to come in, even if working conditions are unsafe, and they need to be protected some other way.
The timing on the next coronavirus relief package is nebulous. House Democrats hope to share their proposals for the next relief package by the end of this week, but Senate Republicans have felt less urgency in passing something and more inclined to wait to see how the nearly $3 trillion Congress already approved gets spent.
In the meantime, Republicans are pushing protection from coronavirus lawsuits. Let’s explore the arguments for and against it.
The argument for lawsuit protections
Reopening means more people go to work and more people get sick. And that means more lawsuits against employers.
As a majority of states begin to lift some restrictions, business leaders have pointed to ads on late-night TV of lawyers looking for clients for coronavirus-related lawsuits as an example of frivolous lawsuits waiting to jump out at businesses when they open their doors. “We’re already tracking over 300 different lawsuits that have already been filed in this period where things have closed down,” Neil Bradley, the chief policy officer of the U.S. Chamber of Commerce, told NPR recently.
That’s concerning to small businesses that have been closed for months. “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 would around the margins, this could make the difference,” Sen. John Cornyn (R-Tex.) told The Washington Post.
Against protections for businesses
On the other side of this debate are trial lawyers, workers advocates and Democrats, and this side basically thinks that the “pandemic” of lawsuits is a made-up concern that leaves workers vulnerable. They argue employees and customers deserve the right to sue if they feel their health is being put at risk for a company’s bottom line.
“Providing some kind of blanket immunity shield is an idea that’s the result of the majority leader’s imaginary boogeyman of a flood of lawsuits, a parade of horribles that is a political ploy,” Sen. Richard Blumenthal (D-Conn.) told The Post.
For example, a county health department in Utah said Monday that a business forced employees who tested positive for covid-19 to show up to work, leading to almost half becoming infected, the Daily Herald in Utah reported. “This is completely unacceptable,” county officials said in a statement.
There are also prominent workplace lawsuits related to coronavirus against Smithfield, one of the nation’s largest pork-producers. It had to close a meatpacking plant in South Dakota after it became a virus hot spot. Now, an anonymous worker who cuts up pig meat in one of its Missouri plants is suing, saying the plant won’t follow basic guidelines like keeping six people apart or encouraging workers to stay home if they are sick.
The plaintiff isn’t asking for money, rather that the plant follow the Centers for Disease Control and Prevention’s guidelines. (Smithfield has denied the allegation.)
For: There could be a compromise where the most egregious workplace violations are still open to lawsuits
What if the liability shield only protected companies that complied with federal guidelines to keep workers safe? That’s what Cornyn is working on, The Post reported. That way the businesses that are grossly negligent could still be sued.
It’s already very difficult for employees to sue employers, said Michael Krauss, a George Mason University law professor with an expertise in tort law. Employees can get workers’ compensation for proven negligence — like forcing employees to stand shoulder to shoulder in a pandemic — but workers would have to prove gross negligence, like forcing someone to come to work even though they’ve tested positive for the virus, to have a real case.
But trial lawyers can get money from convincing workers to try to sue, and that’s a real risk to businesses. So why not spell out some sensible limitations, he argued.
“The ideal statute in my opinion would say: If you do the following, you may not be sued,” Krauss said. “And then there would be a list, like wear masks, have regulations for restaurants, have regulations for meatpackers.”
Against: Workers who fall ill while working will have to shoulder the costs
Reopening is dangerous. And some workers and customers will die and some companies will face lawsuits as a result. But if your argument is that companies can’t afford to be saddled with the costs of paying for someone’s illness or death, then why do you think employees can afford it, asked Kenneth Dau-Schmidt, an employment law and labor professor at Indiana University who has advised businesses on reopening.
“They will be stuck with either the decision to take a risk and return to work — and if I die, my family is left without me and my paycheck and there’s no compensation for it — or give up my job and look for a new one at a time when the economy is in really bad shape,” he said.
He said rather than litigation shields, it makes sense to have a compensation program for workers and their families, because he doesn’t think that traditional workers’ compensation will cover an illness that’s rampant in society. (Workers’ compensation doesn’t extend to the flu, for example.)
For: This will help the economy get going
Otherwise, businesses could be too concerned about lawsuits to open. “It’s essential if we’re going to get the economy going again not to have every business becoming sued by the players who are associated with covid-19,” Sen. Mitt Romney (R-Utah) said Monday, the Wall Street Journal reported.
Against: This will prevent the economy from getting going
But if workers don’t feel like they have recourse to demand protections on the job, why would they show up, workers advocates argue. Same with customers who don’t feel like they have a recourse against a business that is grossly negligent and gets them sick.
“It is the single most-asked question that we have had: ‘Do I have to go back to work if I don’t feel safe?’ ” Alex Kornya with the nonprofit Iowa Legal Aid told The Post. ” … There’s no black or white answer to that question.”