Senators Fail To Reach Deal On Compromise Version Of COVID-19 Lawsuit Ban

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After weeks of negotiations, a bipartisan working group couldn’t compromise on blocking lawsuits from people who say they were negligently exposed to COVID-19.

The lawmakers, who were led by Sens. Joe Manchin (D-W.Va.) and Mitt Romney (R-Utah), reached an agreement on extensions of unemployment insurance, small business aid and vaccine funding, but Manchin was the only Democrat who supported a new version of a clampdown on lawsuits originally proposed by Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. John Cornyn (R-Texas). 

“We didn’t quite get there, although thanks to Joe Manchin, it’s bipartisan,” Sen. Rob Portman (R-Ohio) said. 

The modified liability shield would last for only one year instead of four, Portman said. But a summary of the proposal suggested it retained many of the core provisions of the original McConnell-Cornyn version, such as shifting cases into federal instead of state courts.  

McConnell has insisted since May on stifling lawsuits as part of any further coronavirus legislation, citing a looming “epidemic of lawsuits” that would cripple commerce but that has yet to arrive. Congress has been in a stalemate for months.

After Manchin, Romney and the others started working on a compromise, McConnell said they shouldn’t bother and that Congress should pass a relief bill omitting both his liability proposal and assistance for state governments, which has been a top Democratic priority, to instead come back to those two things next year.  

House Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Chuck Schumer (D-N.Y.) endorsed the Manchin-Romney framework, however, and rejected McConnell’s call to scuttle their talks. 

But the ad-hoc working group took McConnell’s suggestion and split the state aid and liability provisions from the broader bill. 

What this all means is that the prospects for another big coronavirus relief bill are still unclear. Schumer praised the bipartisan group’s “good progress” Monday but said “there is no agreement on corporate immunity.”

It will lead to more illness and death. It allows employers off the hook if they’ve just considered protecting workers and decided not to. said Debbie Berkowitz, former OSHA official with the National Employment Law Project

The original McConnell-Cornyn proposal is quite radical in its breadth. Not only would it substantially raise the bar for workers and consumers to sue corporations over coronavirus exposure, but it would block lawsuits and government enforcement related to a host of bedrock employment laws.

The compromise proposal would still protect employers from liability under labor standards in cases involving the coronavirus, so long as they were “trying to conform to public health standards and guidance,” according to the summary. The senators did not release many details, but that language tracks closely to the text of the bill released months ago by McConnell and Cornyn.

The summary also says the Justice Department could prosecute lawyers who send “meritless demand letters” on behalf of people claiming to have been exposed to the virus, another McConnell priority. 

The legal process for suing a person or institution for personal injury is mostly a matter of state law, but McConnell has said leaving it that way for coronavirus cases would allow trial lawyers to try to shop their lawsuits to states with the most favorable statutes. The compromise says injured parties could still sue in state court, but defendants “have the option to remove to federal court.” 

“Basically, it would have made it so difficult if not impossible for someone to file a lawsuit ― not just prevail in a lawsuit but to file a lawsuit,” Sen. Dick Durbin (D-Ill.), one of the negotiators, told reporters. “They even said that the regulatory agencies of government could not regulate any businesses on the subject of COVID-19 during this period of time and it is really an invitation for bad conduct.”

The AFL-CIO labor federation and other liberal groups have lined up against the concept of a liability shield, saying it would give corporations a green light to ignore safety.

Carolina Sanchez, left, is comforted by her oldest son, Saul Jr., during a protest on  Sept. 16, 2020, in downtown Denver that was staged by the union representing employees at a Colorado meatpacking plant where six workers died of COVID-19 and hundreds more were infected. 

Worker safety advocates said they are alarmed at how the McConnell-Cornyn proposal would weaken the Occupational Safety and Health Administration, which is charged with protecting workers on the job. To avoid citations and fines due to infections and deaths, employers would only have to demonstrate that they were aware of the relevant safety guidelines and “exploring options to comply” with them ― regardless of whether they actually did. 

Under the Trump administration, OSHA has doled out relatively small fines for coronavirus hazards, even in cases where multiple workers died from COVID-19. The McConnell-Cornyn language would make it all but impossible for OSHA to do even that, said Debbie Berkowitz, a former OSHA official under Obama now with the National Employment Law Project. It would also hinder OSHA from enforcing critical whistleblower protections for workers who speak up about coronavirus dangers.

“It will lead to more illness and death,” Berkowitz said on a call with reporters Monday. “It allows employers off the hook if they’ve just considered protecting workers and decided not to.” 

Unions and public health experts have been pushing the incoming Biden administration to issue a temporary emergency standard through OSHA to protect workers from the coronavirus ― something the Trump administration has refused to do. If the shield became law, such a standard would become extremely difficult to enforce. 

But the proposal goes well beyond safety. It would also protect employers from coronavirus-related claims stemming from discrimination law as well as minimum wage and overtime laws. Jennifer Mathis, deputy legal director at the Bazelon Center for Mental Health Law, said it was troubling to see the Americans with Disabilities Act included among the laws from which employers would gain some immunity.

“We can’t afford for people with disabilities to lose the important protections that they have now that would enable them to keep their jobs,” she said on the press call, which was hosted by the liberal nonprofit Public Citizen. “It would be an enormous mistake for Congress to pass a bill with these provisions in it.”

Igor Bobic contributed reporting.

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