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Businesses in some parts of the U.S. have begun to reopen after weeks of closures to stem the spread of the coronavirus. While the public health ramifications are at the forefront of debate, lawmakers are also gearing up for a clash over the legal implications of restarting the economy.
Republicans in Congress are pushing for nationwide liability protections to shield companies from lawsuits related to COVID-19 infections. Senate Majority Leader Mitch McConnell warned that the U.S. could face a “lawsuit pandemic” if customers and employees are allowed to sue over exposure to the virus. McConnell said the provision was a “red line” in negotiations over a possible future economic stimulus bill.
Democratic House Speaker Nancy Pelosi rejected the idea, saying legal immunity for businesses would ultimately lead to “less protection for our workers.”
Limited liability protections are already in place for certain industries in parts of the country. Some states have given legal cover to nursing homes and health care workers on the frontlines of the outbreak. Earlier this month, President Trump signed an executive order aimed at keeping meat packing plants open, which he said would solve the “liability problems” related to a spate of outbreaks among industry workers.
Several lawsuits against companies accused of putting workers in harm’s way have been filed in recent weeks, including a wrongful death suit against Walmart by the family of an employee who died of COVID-19 complications.
Why there’s debate
Proponents of liability protections say the economy’s recovery will be stunted if businesses are afraid to open over the fear of being sued. There are also fears that businesses that have managed to survive the long lockdown period might ultimately be brought down by expensive lawsuits.
Current laws shield business owners who conform with labor laws and make a reasonable effort to protect the health of their employees and customers. But the constantly changing guidance and patchwork of policies in different parts of the country may be too much to expect businesses to keep straight, some argue. “If you’re trying to do the right thing ... then you shouldn’t be kind of second-guessed after the fact,” an executive from the U.S. Chamber of Commerce said.
Opponents of liability shields say existing laws already protect businesses owners from being sued if they make appropriate accommodations for workers and customers. Any additional immunity, they argue, will only open opportunities for owners to force employees to work in unsafe conditions. Others say the economy can’t truly be revived until customers feel comfortable going back to shops and restaurants — which can’t happen if proprietors are allowed to shirk safety standards.
Some legal experts see space for common ground through possible legislation that beefs up protections for most businesses while still allowing space for lawsuits against places that blatantly put people at risk.
The House could vote on its version of the next coronavirus relief package as soon as this week, Pelosi said. Liability protections are likely to be one of several points of disagreement between Democrats in the House and Republicans in the Senate.
The economy can’t reopen if businesses are afraid of being sued
“If Congress wants America to recover with any speed from this pandemic recession, we can’t have a lawsuit epidemic too. Employers operating in good faith need a safe harbor.” — Editorial, Wall Street Journal
Businesses that make a conscientious effort should be protected from liability
“For sectors that are allowed to reopen, liability should be capped at some modest level, and limited to cases of extreme recklessness, gross negligence or criminal misconduct.” — Tyler Cowen, Bloomberg
The virus creates an opening for a flood of frivolous lawsuits
“The coronavirus is a breeding ground of opportunity for frivolous suits that could wreak havoc on our civil judicial process, government operations and the conduct of business in a national crisis environment. You do not have to be a seer to realize that without restrictions on tort liability ... our economy will be further harmed by predatory lawsuits or the mere threat and exposure to the same.” — Bradley A. Blakeman, The Hill
Protecting businesses doesn’t mean cutting corners on safety
“We can’t fix America’s longstanding liability mess in the middle of a pandemic. But we can take steps that smooth the road to economic recovery without imperiling public safety or leaving workers, patients, and consumers unprotected.” — James R. Copland, City Journal
There’s space for compromise
“There are ways to limit liability without eliminating safeguards and lawsuits. A broad outline of safety measures that must be met before reopening, coupled with provisions for worker safety, could allow for some limited liability protections for businesses.” — Editorial, Pittsburgh Post-Gazette
Liability protections are needed, but should be decided by the states
“While federal lawmakers might be tempted to include sweeping liability protections in the eagerly awaited ‘Phase 4’ of coronavirus relief, they ought to let states take the lead in preventing an avalanche of lawsuits.” — Ross Marchand, Detroit News
Businesses shouldn’t be allowed to put profits ahead of worker safety
“The whole point of making employers liable for risking the lives of their staff is to prevent them from exposing their staff to undue risk. Businesses are asking for the right to expose their workers to fatal risks with no consequences. It’s bad economics and bad policy.” — Economist Justin Wolfers
Immunity isn’t necessary if businesses take reasonable precautions
“In the end, liability is not likely to present a huge problem for businesses — as long as they make some reasonable effort to keep their places as safe as possible under these very difficult circumstances. It’s certainly not necessary to hold up desperately needed aid over this issue.” — John Culhane, Slate
Workers won’t go back if they don’t trust their employers to keep them safe
“If you’re granting legal immunity for businesses right now, it’s going to sabotage the effort to get workers and consumers back. If people don’t trust that stores, offices and workplaces are safe, they will refuse to return.” — Consumer advocate Remington Gregg to NPR
Republicans are using the virus as cover to force pro-corporate policies they’ve wanted for decades
“Protecting bosses from lawsuits, allowing them to put front-line workers in danger without fear of repercussion, really is a wish-list item — from a corporate wish list. It is nakedly partisan in a way state and local aid is not.” — David Roberts, Vox
The outbreak will last longer if businesses are free to cut corners on safety
“The prospect of liability for COVID-19 transmission is likely to encourage business owners to invest in cost-effective precautions, follow the advice of public health authorities, adopt industry safety standards and use common sense. Shielding business owners from this liability is one kind of immunity that will not help end the current crisis.” — Timothy D. Lytton, Conversation
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