(Reprinted from Business Insider.)
While we're definitely not there yet, at some point all Americans will return to work. It shouldn't happen until we have the virus under control, until we have brought infections way down, until we have increased our testing and tracing capacity to stamp out any future outbreaks, and until we have personal protective equipment (PPE) for all essential workers — from hospital workers to grocery clerks.
But when America does return to work there should be an additional condition: Consumers and workers must have peace of mind that businesses are taking reasonable steps to protect them.
You'd think that would be a no-brainer. But, shockingly, the US Chamber of Commerce believes otherwise. The chief lobbying group for companies across the country is demanding that Congress immunize firms from pandemic-related liability lawsuits — making it nearly impossible for workers who might get coronavirus on the job due to their employer's mistakes to sue.
What's worse, Senate Majority Leader Mitch McConnell agrees with that powerful special interest. Specifically, their hope is to pass sweeping business immunity from COVID-19 lawsuits. Further, McConnell insists it be part of any new pandemic aid bill.
Giving companies a free pass
Currently, our liability system is state-law based. State laws are not exactly the same, but a company that exercises reasonable care to protect workers or consumers would not face negligence claims while one that cut corners or failed to comply with regulatory guidelines would.
The provision being pushed by the Chamber and Republicans in Congress would substitute a federal court scheme that would only hold companies accountable for pandemic claims when they were either grossly negligent or committed intentional misconduct.
Worse, the proposal's heightened procedural standards would lock most workers or consumers outside the courthouse doors before they even brought a case. The law would no longer force companies to keep workers or consumers safe.
That approach would be a horrific mistake. With near immunity from being held responsible for endangering workers or the public, some companies may think that they can cut corners when it comes to protecting the health and well-being of consumers and workers.
This is nothing new for the Chamber, which, for years, has sought to close the courthouse doors to all claims made by employees against their employers — including those with clear merit. For an organization playing the long game, the pandemic simply provides its latest cover story. It wants to use the anxiety that we all share today to push through a groundbreaking weakening of the law.
Pushing back against this absurd idea
In light of this push to protect companies at the expense of their workers, our elected leaders — and business owners — cannot forget that any recovery requires the public to have confidence that businesses are operating as safely as possible. Without that confidence, no rational consumer will return to their local shops or regularly hop on planes to go on vacations.
To that end, a major poll shows Americans, by a 64% to 36% margin, oppose giving guaranteed immunity to companies from lawsuits in cases involving coronavirus infection.
Despite the clear public will against them, the Chamber of Commerce is pressing forward, claiming that allowing consumers and workers to sue if a business has not done a reasonable job protecting them upon returning to work or shopping, would open the floodgates for frivolous lawsuits. But this assertion is not based on reality.
Democratic Sen. Dick Durbin noted in June that, according to a COVID-19 lawsuit tracker, out of the two million COVID-19 infections in the United States, which was the total at the time he made his statement, there had been only five medical malpractice lawsuits.
And, prominent Georgetown Law professor David Vladeck explained to the Senate Judiciary Committee in May why those numbers are unlikely to reach the boogeyman proportions the Chamber of Commerce is claiming.
"The unprecedented transmissibility of this virus makes it difficult, if not impossible, to pin down the source of any individual's contact with the virus," he said. "In the absence of hard proof of causation, cases will not be filed and lawyers, who get paid only if they win, will be reticent to even consider these cases."
Despite this fact, there still needs to be the flexibility for legal redress. Without it, the potential sanctions for not providing protective equipment or enforcing other safety rules are simply too limp to get all businesses to do the right thing.
As the Economic Policy Institute clearly explained earlier this year: Occupational Safety and Health Administration (OSHA) "penalties are insufficient to serve as a deterrent. Companies merely factor these penalties into the cost of doing business. Therefore, it is imperative that corporations have some legal incentive to adhere to health and safety guidelines."
For companies, maintaining this possibility of litigation shouldn't cause fear. The reason: As is the case with any lawsuit, businesses may have defenses that will prevail in court. That was true before the current crisis and remains true today.
Ultimately, the call for immunity is premised on a false choice between the return to a healthy economy and allowing businesses to be held accountable if their carelessness causes people to get sick.
Companies' purported concern about lawsuits leading to catastrophic bankruptcies is a smokescreen for an opportunistic attempt to use the anxiety that we all share today to push through a revolutionary law that will weaken protections for us all.
The bottom line is that when nobody is accountable, nobody is safe.
Ed Mierzwinski is the United States Public Interest Research Group's senior director of federal consumer programs.
(This blog originally appeared on 9 August 2020 in Business Insider as "The GOP is trying to shove a disastrous provision into the newest coronavirus aid bill that would make it almost impossible for workers to fight back against their employers if they catch COVID-19 on the job.")
Photo of New Haven County (CT) Courthouse used under Creative Commons license. Credit: "CT - New Haven: New Haven County Courthouse" by Wally Gobetz wallyg is licensed under CC BY-NC-ND 2.0.
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