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Businesses Seek Sweeping Shield From
Pandemic Liability Before They Reopen
A new legal and political front is coming into view as the nation starts to ease public health
limits that have crippled the economy: Will business owners fear lawsuits and stay closed
By Jim Tankersley and Charlie Savage
April 28, 2020
WASHINGTON — Business lobbyists and executives are pushing the Trump administration and
Congress to shield American companies from a wide range of potential lawsuits related to
reopening the economy amid the coronavirus pandemic, opening a new legal and political fight
over how the nation deals with the fallout from Covid-19.
Government officials are beginning the slow process of lifting restrictions on economic activity
in states and local areas across the country. But lobbyists say retailers, manufacturers, eateries
and other businesses will struggle to start back up if lawmakers do not place temporary limits on
legal liability in areas including worker privacy, employment discrimination and product
The biggest push, business groups say, is to give companies enhanced protection against lawsuits
by customers or employees who contract the virus and accuse the business of being the source of
the infection.
The effort highlights a core tension as the economy begins to reopen: how to give businesses the
confidence they need to restart operations amid swirling uncertainty over the virus and its
effects, while also protecting workers and customers from unsafe practices that could raise the
chances of infection.
Administration officials have said they are examining how they could create some of those
shields via regulation or executive order. But lobbyists and lawmakers agree that the most
consequential changes would need to come from Congress — where the effort has run into
partisan divisions that could complicate lawmakers’ ability to pass another stimulus package.
Republicans are pushing for the liability limitations as a way of stopping what they say are
overzealous trial lawyers and giving business owners the certainty they need to reopen.
Democratic leaders say they oppose any moves to undermine worker protections.
Leaders of labor unions say limiting business liability will reward companies that are not taking
adequate steps to ensure the safety of their workers and consumers.
In announcing that the Senate will return on May 4, Senator Mitch McConnell of Kentucky, the
majority leader, said on Monday there was an “urgent need” to enact legislation to shield
businesses from pandemic-related legal liability if they reopen, citing the risk of “years of
endless lawsuits” arising from “a massive tangle of federal and state laws.”
“The trial lawyers are sharpening their pencils to come after health care providers and
businesses, arguing that somehow the decision they made with regard to reopening adversely
affected the health of someone else,” Mr. McConnell said in an interview on Monday on Fox
News Radio.
Mr. McConnell suggested that the liability issue would need to be resolved before Congress
provided any additional financial relief to states, teeing up a big fight over the next aid package.
Negotiations on that bill will heat up next week, with Democrats pushing for hundreds of billions
of dollars to help state and local governments fill a crisis-induced shortfall in tax revenues. They
are also seeking aid for the United States Postal Service and federal “hazard pay” for workers on
the front lines of the pandemic.
Mr. McConnell indicated Republicans would require a trade-off and that Democrats would have
to bend on liability protections for business in order to get more stimulus aid. “So before we start
sending additional money down to states and localities, I want to make sure that we protect the
people we’ve already sent assistance to, who are going to be set up for an avalanche of lawsuits
if we don’t act,” he said.
Speaker Nancy Pelosi, Democrat of California, rejected Mr. McConnell’s call. “I don’t think that
at this time, with coronavirus, that there’s any interest in having any less protection for our
workers,” Ms. Pelosi said on Tuesday.
Business groups say they have been stressing to lawmakers that the liability limits would be
temporary and contained to the crisis.
“As long as we are not overreaching in what we’re asking for, and we’re being thoughtful and
measured, there’s a real chance we can get these protections for our members,” said Linda Kelly,
the general counsel for the National Association of Manufacturers, which is pushing lawmakers
to make a targeted set of changes in the next economic rescue package.
“We have some work to do with Democrats,” Ms. Kelly said. “I don’t think we can do it without
that support.”
The manufacturers’ proposals include raising the legal bar for customers or employees to prove a
business is at fault if they claim they contracted the virus there, protecting employers from some
privacy suits in the event that they disclose a worker’s infection to other workers for safety
reasons and giving added legal protections to companies that manufacture items during the crisis
that are new to them — like personal protective equipment. Congress included a version of that
liability limitation for manufacturers of masks in the rescue bill it passed last month.
A longer list circulated two weeks ago by the U.S. Chamber of Commerce includes some things
the administration could do on its own — like Labor Department guidance about mask
requirements and the steps it will deem sufficient to meet Occupational Safety and Health
Administration standards. Others include steps only Congress could enact, like passing a law
taking away people’s right to file lawsuits in state courts over allegations that a business was
negligent in taking pandemic precautions. A range of legal specialists in civil lawsuits over
claimed injuries and labor law said the business lobby’s requests include both sensible ideas that
could be put in place quickly and politically implausible stretches. The risk, they said, is that if
the lobby asks for too much, it could get bogged down, forestalling the changes needed for the
eventual recovery.
Samuel Estreicher, a New York University Law School professor of labor and employment law,
argued that it would make sense for the Labor Department and the Equal Employment
Opportunity Commission to issue guidance about basic safety steps businesses should follow.
For example, he said, it would be useful to promulgate guidance that, if a business requires its
workers and customers to wear masks and practice social distancing to the extent practicable, it
would have a “safe harbor” from being considered by the federal government to be negligent —
a standard that could also discourage state-court lawsuits. He also said it made sense to tell
businesses they could require employees to pass a test for the virus before returning to work
without running afoul of disability discrimination and health privacy laws.
But the chamber’s list, he says, goes far beyond that, ranging from tiny issues — like wanting to
relieve employers from a need to provide masks or train employers in how to properly use them
— to gutting hard-fought labor laws in ways that seem unjustified, like permitting employers to
bar older workers from returning to work based on fears that they may be statistically more
vulnerable to serious symptoms.
“This is a wish list for mini constituencies within the business community,” he said. “They
should be focusing on what they need for immediately addressing legitimate concerns, so we can
go back to work.”
Labor leaders reject the effort entirely. Mary Kay Henry, the president of the Service Employees
International Union, said employers were still sometimes failing to provide personal protective
equipment to workers, and she called the liability-limitation push “inhumane.”
“This is a discussion from corporations and employers that are shirking their employees on the
front lines of the pandemic,” Ms. Henry said. “They’re now going to try, as they infect people, to
shirk any legal responsibility for it?”
Complicating matters, most workplace safety is regulated at the state level — though there are
some federal laws on employment issues, including imposing a duty on employers to have safe
workplaces. Each state has its own workers’ compensation system for people who are injured at
work, and lawsuits by customers who accuse a business of negligence are generally brought in
state courts under a patchwork of standards.
But workers’ compensation systems are geared at physical injuries, like a construction worker
injured in a crane accident. While businesses would surely argue in court that getting sick from
the pandemic should also be handled as a worker’s compensation claim instead of with a
personal-injury lawsuit, plaintiff’s lawyers can argue that exposure to a pathogen in a workplace
falls outside of that system and so they should be permitted to sue for damages — setting up
costly and daunting litigation.
In theory, Congress could set uniform federal standards and take away the right to file lawsuits in
state courts, said John Goldberg, a Harvard law professor who specializes in torts, or the law of
civil wrongs and injuries. The Constitution gives Congress the right to regulate interstate
commerce, and restarting a national economy wrecked by a national pandemic would probably
“Saying we’re doing this to restart a national economy that has basically collapsed — it would be
pretty hard to say that isn’t directly related to interstate commerce,” he said.
But what Congress could do and what it is politically likely to do are two different things. Neil
Bradley, the executive vice president and chief policy officer at the U.S. Chamber, said he hoped
lawmakers would act within a few weeks to hasten reopenings.
“As long as this is hanging out there,” Mr. Bradley said, “this is just one more threat to the
Mr. Goldberg said the chamber may be overestimating the legal risks even under current law. He
said that plaintiff’s lawyers would be reluctant to take on a case where there was not clear
evidence that a person got sick at a particular business — something that will be hard to prove
for a virus that has a weekslong incubation period.
“Under current law plaintiffs have to prove the target was negligent,” and proof of causation “is
going to be daunting if not impossible,” he said, adding: “You never say ‘never’ in the world of
liability, but the idea this is a looming tidal wave of lawsuits that are going to succeed seems to
me overstated.”
Emily Cochrane contributed reporting.
White House and Congress clash over
liability protections for businesses as firms
cautiously weigh virus reopening plans
McConnell says liability protections for businesses are a
requirement; Pelosi and Democrats say no. And there’s no
sign of compromise.
Erica Werner and
Tom Hamburger
May 3, 2020 at 9:04 a.m. EDT
Congressional leaders are girding for a huge fight over the reentry of millions of Americans to
the workplace, with Senate Majority Leader Mitch McConnell (R-Ky.) insisting that employers
be shielded from liability if their workers contract the coronavirus. He appears to have the
backing of top White House officials.
Democratic leaders have declared they will oppose such blanket protections, putting
Washington’s power brokers on opposite sides of a major issue that could have sweeping
implications for health care and the economy in the coming months. The battle has unleashed a
frenzy of lobbying, with major industry groups, technology firms, insurers, manufacturers, labor
unions, and plaintiffs lawyers all squaring off.
The clash is a sharp departure from the past six weeks, when lawmakers from both parties came
together to swiftly approve nearly $3 trillion in emergency funds as Americans hunkered down
during the pandemic. Now, lawmakers are warring over what the rules should be when millions
of Americans return to the workplace.
With President Trump increasingly focused on pushing businesses to reopen, the Republican-led
Senate is preparing to reconvene on Monday. Key GOP senators are circulating drafts of
legislation to set up legal protections they say would give businesses the confidence to reopen
without worrying about lawsuits.
“It seems intuitive to me that if you’re a marginal small business and you’re making the decision
whether to hang in there and try to survive, or whether you’re just going to give up and either
declare bankruptcy or just become insolvent, that this would around the margins, this could make
the difference,” said Sen. John Cornyn (R-Tex.).
Cornyn is working on legislation that would shield businesses from liability over coronavirusrelated claims as long as they comply with government guidelines.
The Democratic-run House remains largely shuttered for at least another week, with leaders
citing the health risks. And Democratic leaders want to focus their next legislative effort at
pumping more money into the economy, with House Speaker Nancy Pelosi (D-Calif.) pointing to
$1 trillion in needs for cities and states.
But for McConnell, one of the biggest concerns appears to be the threat of lawsuits against
businesses. He has described the potential for a “second pandemic” of litigation, and he and
House Minority Leader Kevin McCarthy (R-Calif.) say discussion of liability protections will be
“absolutely essential.” Democratic leaders, however, have not expressed any interest in
advancing such protections at a time when workers are risking their health by laboring at
manufacturing jobs, grocery stores, hospitals and other businesses that have stayed open
throughout the crisis.
“Providing some kind of blanket immunity shield is an idea that’s the result of the majority
leader’s imaginary boogeyman of a flood of lawsuits, a parade of horribles that is a political
ploy,” Sen. Richard Blumenthal (D-Conn.) said Friday. He said the proposal would be “a nonstarter.”
Lawmakers in both parties, along with Trump administration officials, agree that Congress must
attempt to produce additional measures to address the pandemic, as the economy still reels after
more than 30 million Americans filed unemployment claims in six weeks. But reaching
consensus between the Senate, controlled by Republicans, and House, controlled by Democrats,
could prove much harder than previous efforts.
In addition to the GOP demand for corporate liability protection, Democrats have demanded
more assistance for cities and states, which McConnell says he won’t agree to without liability
protections included.
For now, public posturing has taken the place of any serious bipartisan negotiations.
It’s not yet clear what types of legal liability proposals Republicans and the Trump
administration might coalesce around. Cornyn and other Republicans are looking for ways to
shield businesses and health-care providers from coronavirus-related claims while making
exceptions for gross negligence, and they’re also eyeing protections for makers of protective
gear. In earlier coronavirus bills, Congress has already approved some protections for makers of
protective masks and for volunteer health workers. Cornyn also suggested the possibility of
establishing a federal fund that would pay out claims.
“We’re pretty strongly exploring the breadth and depth of liability protection for businesses and
the like as we go through reopening and sustaining opening through the pendency of coronavirus
prior to the introduction of a vaccine,” said a senior administration official, speaking on
condition of anonymity to describe confidential deliberations.
The debate over legal liability and tort reform has divided the parties for years, with Democrats
accusing Republicans of doing the bidding of big business while Republicans contend that
Democrats are in the pocket of trial lawyers. Powerful business lobbies like the Chamber of
Commerce, the National Association of Manufacturers and the insurance industry are now
lobbying heavily in support of liability shields for businesses, while trial lawyer associations,
unions and groups representing plaintiffs and consumers are pressuring Democrats to oppose any
such measures.
An April 29 letter to congressional leaders signed by scores of unions and advocacy and
consumer groups, including the AFL-CIO and the National Consumers League, said they
“strongly oppose any legislation that would establish nationwide immunity for businesses that
operate in an unreasonably unsafe manner, causing returning workers and consumers to risk
COVID-19 infection.”
Linda Lipsen, chief executive of the trial lawyers lobby American Association for Justice,
alleged that Republicans and business groups are trying to use the pandemic to advance their
long-standing agenda of limiting people’s ability to sue when they are harmed.
“Sen. McConnell has been promoting immunity for companies that act unreasonably for over 30
years, and this is an extension of that,” Lipsen said. “This move to hold this covid package
hostage with his agenda items is unpatriotic.”
Multiple lawsuits have already been filed against businesses, including Walmart, nursing homes,
insurers and others. More are on the way. Ads from attorneys seeking clients who’ve suffered
damages in some way from the coronavirus outbreak are popping up on late-night TV.
A group called Top Class Actions that runs a website funded by attorneys is advertising multiple
investigations related to the coronavirus, ranging from issues involving denied refunds for
college courses, canceled flights, and faulty or lacking personal protective equipment, among
other things.
Scott Hardy, the group’s president, said they’d received more than 10,000 submissions in just the
last month related to the coronavirus.
Hardy pointed to the example of meat packing facilities where workers have been required to
stay on the job, in some cases, they say, without appropriate protective gear or in unsafe
conditions. Some have fallen ill as a result.
“We can’t be taking these rights away from all of these employees who are doing their best,
these essential workers who are doing their best to help us,” Hardy said.
Republicans and business groups dispute that they are trying to prevent workers or consumers
from filing legitimate claims, or protect employers who have actually been negligent. Instead,
business officials insist they are advancing limited sets of proposals aimed specifically at setting
up reasonable protections for employers and health-care workers in the context of the pandemic.
The National Association of Manufacturers, for example, is asking Congress to limit lawsuits to
instances where a manufacturer had actual knowledge that workers could be exposed to the
coronavirus and consciously disregarded that information or acted with reckless indifference.
The group is also seeking protections to ensure employers can collect and exchange critical
information about employees’ health status, and asking for liability shields for manufacturers
that are producing protective gear like respirators or masks.
“If we are to get the country back to work and get our economy going again, employers have to
have the confidence they can restart their operations or ramp their operations back up if they’ve
been working all along,” said Linda Kelly, general counsel at the National Association of
The U.S. Chamber of Commerce is seeking some similar measures, including a “safe harbor”
against customer lawsuits for businesses that have f …
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