Liability limits could threaten everyday workers

Bill Knight column for 6-25, 26 or 27, 2020

           

Those with the misfortune of contracting COVID-19 and getting sick or worse because their employers didn’t following safety guidelines may not get their “day in court” if Senate Majority Leader Mitch McConnell (R-Ky.) and colleague John Cornyn (R-Texas) force the deregulation of liability laws.

The U.S. Chamber of Commerce and conservative groups are lobbying lawmakers to give companies, hospitals, property owners and other businesses legal immunity if workers contract the coronavirus on the job or families claim their relative died after catching the virus there.

A Chamber memo this spring showed major corporations are conceding that many workers could get infected and possibly die.

“Our legislation is going to create a legal safe harbor for businesses,” McConnell said in the Senate, later adding, “My red line going forward on this [new government relief] bill is we need to provide litigation protection for those who have been on the front lines. We can't pass another bill unless we have liability protection.”

Last Friday. McConnell said, “I’m going to insist on liability protection related to the coronavirus incident. Keep your eyes out for July.”

Besides McConnell holding additional aid hostage, it’s unnecessary. Current law says businesses needn’t be worried about litigation if they take “reasonable care” to protect workers, like following industry standards and state or local guidelines. If they don’t, well …

Some may McConnell’s liability limitation would stop frivolous lawsuits, but there are other ways that’s already done, and some attorneys say that COVID-19 lawsuits are unlikely anyway since evidence would be difficult to determine.

“You have to prove that’s where you got it, like if some employer demands symptomatic workers come back to work, maybe like in meatpacking,” said Peoria attorney David Hunt, who represents people in personal-injury and workers’ compensation cases.

The choice is safely operating even though there may be some liabilities, versus reopening without protections because you won’t be sued and having workers sickened.

“You can’t have it both ways,” Hunt said. “The consumer standpoint presents a whole different set of problems because technically, if you step outside you expose yourself.”

Further, unlike personal-injury or wrongful-death cases, which can hinge on negligence, workers sickened or injured on the job usually cannot sue since workers compensation is the exclusive remedy for getting medical bills paid and maybe getting help for lost pay. Not ensuring safe working conditions, though, could make employers vulnerable to legal action.

However, Congress weakening liability responsibilities could tempt companies to not bother sanitizing work areas, providing masks or enforcing social distancing, letting them escape their obligations to provide safe working conditions.

The Centers for Disease Control and Prevention recommends workers wear face coverings, have plenty of opportunities to wash their hands, and have their temperatures taken before working. But in April the CDC also said employers can compel employees to work if they’ve been exposed but aren’t showing symptoms – despite what epidemiologists call the risks of “silent carriers” of the virus.

For decades, so-called tort reform has been a goal by conservative groups such as the American Legislative Exchange Council, a Koch-supported group that drafts bills for state legislators, and in May North Carolina became the 10th state to limit liability, joining Colorado, Kansas, Kentucky, Michigan, Oklahoma, Tennessee, Texas, Utah and Wisconsin.

Plus, immunity on the federal level would let lawsuits be moved to courts with Trump-appointed judges, said the National Employment Law Project, which added that the scheme could cover nearly everything, not just the COVID-19 virus.

Hunt says he thinks it’s less about conservatives’ long-running attacks on trial lawyers than about protecting business.

“They’re pandering to employers, particularly insurance companies that wouldn’t have to pay [claims],” he says. “I don’t see how they could possibly do that. That would be a horrible situation.”

Democrat Charles Booker, a Kentucky State Representative and one of the candidates vying to run against McConnell in November, said, “Folks like Mitch McConnell are still seeing this as an opportunity to bail out big businesses and not prioritize the people.”