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Article: Senate panel tees up fight over COVID-19 liability protection
15 May 2020
This is article from our IEG Policy platform dated
13/05/20.
Senate Republicans are backing a push by the food industry and
other businesses for liability relief from coronavirus-related
lawsuits, but face opposition from Democrats, labor groups, and
worker advocates who contend the requested immunity is ill-advised
and unnecessary.
The Senate Judiciary Committee on Tuesday (May 12) held the
first hearing on the liability concern, which has emerged as a
major sticking point in negotiations over the next COVID-19 relief
package. A long list of industry interests led by the US Chamber of
Commerce - and includes major food and ag groups - have been
furiously lobbying Congress for liability relief.
House Democrats refused to include immunity from COVID-19
lawsuits in their $3 trillion relief package released this week,
but Senate Majority Leader Mitch McConnell (R-Ky.) has declared his
support for the policy and warned that he won't move forward with a
stimulus bill unless it includes liability protections.
Testifying on the behalf of National Association of Convenience
Stores, Kwik Chek Convenience Stores CEO Kevin Smartt told
lawmakers that essential businesses have had to contend with
"constantly shifting and conflicting public health guidelines" from
federal, state and local officials.
"Our business, and other essential businesses, that have made
real efforts to do the right thing should not be punished with
unfair lawsuits just because we kept our doors open for the
American public," he said.
Echoing the call by other food groups - including the American
Beverage Association, American Bakers Association, Food Marketing
Institute, National Cattlemen's Beef Association, and North
American Meat Institute - Smartt said the request is not for
blanket immunity but for targeted and "very limited-time" liability
protection from claims that businesses are responsible for workers
or customers contracting the highly contagious virus.
"Lawmakers shouldn't let businesses that operate in good faith
to keep their doors open be harassed by unsubstantiated claims," he
said. "It would be tragic if we had to close our doors after doing
so much to stay open because of exorbitant legal costs related to
liability threats."
The head of the nation's largest food worker union took a
different view and warned that "no company should be shielded from
responsibility" for failing to take adequate steps to safeguard
workers or customers.
"This is not about being anti-business it is about being
pro-safety," said United Food and Commercial Workers International
Union President Marc Perrone. "Immunity laws could send dangerous
messages that the safety of these workers is not a company's
responsibility."
A legal expert also told lawmakers to resist the call for
liability protection. Only a handful of tort cases related to
coronavirus have been filed and to plead such a case in court the
plaintiffs have to be able to establish causation - to effectively
prove where and how they got the virus, explained David Vladeck, a
law professor at Georgetown University's Law Center.
"There is no way in the world they are going to be able to," he
said. "The best way to protect the public and business is to force
our public health agencies to provide specific detailed,
sector-related guidance about how to reopen this economy safely.
Then they are protected from liability as they should be."
Federal rules needed
Democrats echoed that criticism and said any legal uncertainty
about liability is due to the lack of federal rules for workplace
safety, noting that the Trump administration has refused to issue
mandatory rules through either the Centers for Disease Control and
Prevention (CDC) or the Occupational Health and Safety
Administration (OSHA) to dictate what specific steps companies
should take to protect customers and workers from COVID-19.
"Under state tort laws, a business that acts reasonably and
follows workplace safety standards has a defense against liability
and this is a powerful incentive for businesses to proactively work
to reduce workplace harm," said Sen. Dianne Feinstein (D-Calif.).
"That is why it is for the federal government to issue specific,
COVID-related standards for workplaces. So far OSHA has failed to
do so."
Smartt, Perrone, Vladeck and the other witnesses at the hearing
agreed that enforceable rules from OSHA would help address the
issue - as did Committee Chairman Lindsey Graham (R-S.C.).
Federal regulators must tell "employers what they need to do to
protect the workers and hold them accountable if they don't,"
Graham said, adding that it "seems to me that one primary goal out
of this hearing is to get the standards in place for business, for
universities, for schools, whether they come from the CDC [or] OSHA
they need to be out there so people can understand what's expected
of them and if they do what's expected, they don't need to worry
about getting sued. The big hole in the puzzle right now is the
standard."
Graham, a key Trump ally in the Senate, did suggest he might
press the White House on the issue.
"I'll pass this up the food chain of the administration that the
sooner we can come with a regulatory, OSHA-driven process … the
better off we will be," he said. "We need to give people notice of
where the cliff is."
But Graham told colleagues that regulations alone won't be
enough and that some sort of legislation looks necessary.
"The goal is to define limited liability protection in time and
scope to deal with a COVID-related reopening of the county," he
said. "We need to make sure bad actors are not given a break but
that people who are trying to do it right can reopen their
businesses … with assurance that if you practice the right
procedures that you don't have to worry about getting sued on top
of everything else."