NPR reported that as the government shifts its focus from coronavirus containment to restarting the economy, discussions have begun in Congress regarding the second pandemic relief bill, in particular, the issue of providing immunity for businesses from lawsuits related to the pandemic. As companies reopen, employees want to return to work without the risk of getting sick. At the same time, employers want liability protection from workers who might get COVID-19 on the job and decide to sue.
Senate Majority Leader Mitch McConnell (R-KY), who will oversee much of the coronavirus relief legislation, thinks a lawsuit shield for companies against possible claims must be included. If businesses are not protected, then they may not want to open their doors. This could dramatically slow an already collapsing economy. McConnell said, "If there's any red line, it's on litigation. The litigation epidemic has already begun. As of the end of last week, one report had it that 771 lawsuits had already been filed. This is going to impact our ability to begin to get back to work."
No specific details have been laid out with respect to the amount of employer liability protection the bill would give business owners. Very few speculate that it may mean a blanket pass for businesses, which they say fails to incentivize them to implement virus safety measures. In that scenario, outbreaks might be commonplace as seen in the meat industry, where employees were unprotected despite guidelines and standards provided by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA). One of those companies, Smithfield Foods, the world's largest pork processor, is the target of a recent lawsuit that alleges the company did not provide adequate protection to employees amid the coronavirus outbreak. Similarly, some opposed to Senator McDonnell's plan think that no litigation protection for businesses means they tend to behave better. The idea is that companies that adhere to government standards and do their best to protect workers should be enough to safeguard themselves from litigation.
Senator McConnell has pushed aside the notions of leaving companies completely vulnerable and granting full immunity. He offered that the plan would be “narrowly crafted liability protection to target healthcare workers and others who have been on the front line here with something brand new that people were unclear of how to deal with,” as published by the LA Times. The proposal is for companies to have limited, temporary, and targeted protection during this national emergency pandemic period. Generally speaking, those that follow the CDC and OSHA working condition standards yet have an employee that gets infected with the coronavirus would have legal protection. Those employers who are grossly negligent or reckless in exposing workers or customers to the risk of infection would not be covered.
The devil will be in the details as there are many gaping holes and unanswered questions with this type of policy. Lawmakers will need to address issues such as the extent of government involvement and regulation required in these lawsuits, employee rights, health privacy, disability discrimination, owner responsibility to provide personal protective equipment, which is a scarce commodity, and extended protection from customer and patient lawsuits. Adding to those considerations are lobbyists, worker unions, industry representatives, and medical groups pressuring politicians to vote with their best interests in mind. Crafting the second round of much-needed pandemic legislation will not be an easy task and most likely will warrant the need for tort reform.