Republicans, led by Senate Majority Leader Mitch McConnell (Ky.), say the issue of legal protections for businesses from lawsuits is a “red line” for them. McConnell has warned for months of lawsuits creating a “second pandemic” for companies that are already struggling.
Democrats think that is an unnecessary restriction that hurts workers. As The Washington Post reports, data shows that workplace transmissions have been relatively high, yet the number of lawsuits has been pretty low.
The bipartisan Senate bill tries to strike a compromise — offering some liability protections from federal lawsuits, though not nearly for as long as Republicans want, only through 2020 rather than years. But McConnell hasn’t agreed to this, and he said Tuesday that he wants businesses to be protected from state and local lawsuits as well.
That this is coming to a head now isn’t surprising. It encapsulates a long-running debate between Democrats and Republicans, one that gets at the heart of their governing philosophies: Does protecting industry protect workers?
Let’s explore the arguments for and against liability shields.
For: There could be a compromise in which egregious workplace violations are still open to lawsuits
It’s already very difficult for employees to sue employers, said Michael Krauss, a George Mason University law professor with expertise in tort law. Employees can get workers’ compensation for proven negligence (like forcing employees to stand shoulder to shoulder in a pandemic), but they would have to prove gross negligence (like forcing someone to come to work even though they have tested positive for the virus) to have a real case.
But trial lawyers can get money from persuading workers to try to sue, and that’s a real risk to businesses. So why not spell out some sensible limitations, Krauss argued.
“The ideal statute, in my opinion, would say: If you do the following, you may not be sued,” he said. “And then there would be a list, like wear masks, have regulations for restaurants, have regulations for meatpackers.”
To that end, Sen. John Cornyn (R-Tex.) has proposed that any business, nonprofit or local government following public health guidelines be legally shielded from most lawsuits. But Republicans want those protections to last for five years.
Against: Employees who fall ill while working will have to shoulder the costs
Reopening is dangerous. 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 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.
Dau-Schmidt said that rather than litigation shields, it makes sense to have a compensation program for workers and their families, because he doesn’t think traditional workers’ compensation will cover an illness that is 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 as though they have recourse to demand protections on the job, why would they show up, workers advocates argue. Same with customers who don’t feel as if they have 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.”