Liberties, Livelihoods, and Lives

Update 438: Liberties, Livelihoods, and Lives:
McConnell’s Curious COVID Immunity Bid

The administration and GOP members of Congress have urged policies to accelerate the reopening of the economy. Relief and rules providing incentives for a return to work are the order of the day. Then why advocate, let alone insist on, a policy that makes it much riskier, physically and financially, to go back to work?

Because, like everyone else, the GOP wants immunity. But they mean blanket legal liability immunity for employers. If they can get it, afflicted American workers pay their firms’ damages. Offered paying work today, millions of desperate Americans might have to take it, even if their boss takes no safety precautions and they have no legal recourse. The GOP points out that this tort “relief” costs nothing.

Below, we discuss tort immunity for employers during COVID, the subject of a hearing yesterday in Senate Judiciary and Mitch McConnell’s extortion price for any more economic relief.

Best,

Dana

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Late last month, the Trump administration floated an executive order instituting a liability waiver for businesses whose employees contract coronavirus on the job. Soon after, Senate Majority Leader McConnell stated his intent to pass liability immunity for businesses in the next coronavirus package. Yesterday, the Senate Judiciary Committee heard testimony on the matter. 

This idea goes beyond putting corporate profits ahead of workers; implementation would worsen public health and economic crises. Blanket liability immunity would create a moral hazard wherein businesses have no incentive to take necessary measures to protect their workers. It’s a race to the bottom for workplace standards. 

Below, we detail the liability immunity proposal and its outlook for Corona 4.

False Start for Fans of Liability Immunity

The Senate Judiciary hearing yesterday did not go well for liability immunity proponents. Republicans sought to shift attention away from worker protections and public health concerns, instead taking up the putative plight of business owners. But, per Sen. Durbin, even as 1.3 million Americans have been diagnosed with coronavirus, just nine medical-malpractice lawsuits and 27 personal-injury lawsuits have been filed. Sen. Blumenthal asked the GOP witnesses how blanket immunity could distinguish bad actors, and how employers victimized by careless employees would proceed without recourse; no answers were forthcoming. 

The Occupational Safety and Health Administration (OSHA) did not fare well in the hearing, either. Over the course of the COVID-19 pandemic, OSHA has failed to issue mandatory guidance to protect workers. As of mid-April, workers had filed thousands of workplace safety complaints regarding the coronavirus with OSHA. Chairman Graham and Republicans on the Committee advocated for a stronger and more active OSHA. Compliance with any new OSHA guidelines would afford employers a legitimate defense in tort cases. 

State of Play

Not even attempting to mask his contempt for workers, McConnell said late last month that, “The next pandemic coming will be the lawsuit pandemic” and that he would not agree to any relief for states or local governments without corporate liability immunity.

Though yesterday’s hearing was a disaster for proponents of liability immunity, both McConnell and House Minority Leader McCarthy have stated they will not support any bill without a business liability immunity provision. House Speaker Pelosi has rejected the inclusion of corporate liability immunity, and Senate Minority leader Schumer has dismissed McConnell’s demands as “subterfuge.” 

Bad for Workers, Consumers, no, Everyone

McConnell’s demand that Republicans draw a “red line” here is both dangerous and unpopular. Workers’ compensation rules already largely eliminate the right of workers to sue their employers, but liability immunity would eliminate even the limited benefits provided by workers’ compensation. Workers are particularly vulnerable now given the economic chaos. Blanket liability immunity would give corporations even greater power to exploit their workers without fear of any penalty. Further, per a Hart Research poll last week, a majority of people across the political spectrum oppose granting blanket immunity to corporations. 

Liability immunity would hurt more than service workers. It would apply equally to private hospitals, prisons, and nursing homes — epicenters of the pandemic. Complete corporate liability immunity would protect bad actors and could encourage businesses to cut costs by not providing adequate protection without risk of lawsuits. 

A Democratic Counter

While McConnell presses ahead on liability immunity for big business, House Democrats are advancing their own multi trillion-dollar coronavirus relief package. But even the commonsense proposals within the package — like aid to states and localities — do not stand a chance in the Senate or on Trump’s desk. If McConnell and the Republicans push forward with some form of liability protection, CARES Act II gives Democrats another chance to score some wins for the American people. 

• Strict Liability: ‘Businesses need certainty and can’t be bogged down by lawsuits in these times’ may be a favorite talking point of the right, but that doesn’t mean it’s false. While complete immunity for businesses must remain off the table, Democrats could offer a compromise wherein companies are bound by strict liability for safety violations, perhaps with a cap on damages in cases short of gross negligence.
  
  If Republicans insist on liability relief, Democrats can insist on more meaningful measures. Abhorrent as the concept of blanket liability immunity is, only nine medical malpractice suits have been filed — not quite an epidemic of litigation. So the concession may be an acceptable price to pay for a bill including the Jayapal wage continuity proposal (below), for example. 
• Aid to states and localities: The Center on Budget and Policy Priorities estimates that states could collectively see a budget deficit of $290 billion next fiscal year, greater than during the 2001 recession and 2007-2008 financial crisis. McConnell and his fellow Republicans argue erroneously that federal assistance would amount to a ‘blue state bailout,’ ignoring that the virus hit certain areas harder than others and that many red states are also pleading for help.
  
  Republicans seem willing to hold the macroeconomy hostage in exchange for concessions, and therein lies the disadvantage for those fighting for responsible governance. 
• Wage continuity: If Democrats are in a fighting mood or public opinion shifts against McConnell and the Republicans, they may be in a position to secure a grand bargain with the potential to obviate the need for future CARES Acts: strict liability in exchange for wage continuity through Rep. Jayapal’s Paycheck Guarantee Plan. 

There is practically no problem, no “epidemic” of frivolous litigation, in Mitch McConnell’s unfortunate phrase, occurring now or likely. Tort reform of this sort right now is a Fauci-pas, yet there is a solution in plain sight. It was proposed by Sen. Graham yesterday and endorsed by all six of his hearing witnesses without reservation: OSHA guidelines are guaranteed to reduce litigation, they said.