In May, the Editorial Board of the New York Times wrote the below on Mitch McConnell’s plan to condition money to fight the COVID-19 virus on his demand to pass tort reform for his campaign contributors. Pathetic.
“There’s a tension at the heart of all of the plans to reopen the country in the midst of the coronavirus pandemic: The economy needs Americans to get back to work, but workplaces need employees and customers to feel that coming back won’t endanger their health or their lives.
Mitch McConnell, the Senate majority leader, seems to be concerned primarily with the first half. The biggest obstacle, as he sees it, is not a deadly disease but rapacious trial lawyers, capitalizing on the virus to chase ambulances and bankrupt American businesses.
“If people don’t come and businesses are afraid to open because of the lawyers that are lurking on the curbside outside their doors, we won’t have the reopening we want,” he said late last month. He warned of “years of endless lawsuits” from employees and customers flooding the courthouses with claims that a business’s negligence infected them with the virus. He’s called this supposed wave of litigation a “second pandemic.”
As Congress gears up for the next installment of its stimulus package, Mr. McConnell has drawn a line: No more money for anyone until businesses get immunity from liability during the pandemic. The demands being debated include making it harder to claim that a business is at fault for a worker’s or customer’s infection, protecting businesses that are making personal protective equipment like masks for the first time, and protecting employers against privacy lawsuits if they disclose a worker’s infection.
The problem is that immunity doesn’t just shield the worst actors; it also punishes the best, by giving a competitive advantage to the businesses that decide to cut corners at the expense of worker and customer health and safety.
Consider what happened in Utah, which passed a bill immunizing businesses from pandemic-related litigation in most cases and issued only advisory guidelines. The next day, the Utah Press Herald reported that two businesses had told their employees to disregard the guidelines, and even ordered those who had tested positive for the coronavirus to report to work. At one of the businesses, nearly half of all employees tested positive.
In Missouri, a meatpacking plant operated by Smithfield Foods was sued by a worker and a local advocacy group for creating a public nuisance by forcing employees to work at high speed, in close quarters and without necessary safety gear. The complaint said workers couldn’t even cover their mouths when they coughed out of fear of missing a piece of meat coming down the line. Another Smithfield plant, in South Dakota, was shut down after briefly becoming the nation’s biggest coronavirus hot spot.
A spokeswoman for Smithfield blamed the South Dakota plant’s “large immigrant population” for the outbreak. “Living circumstances in certain cultures are different than they are with your traditional American family,” she said. Putting aside the crass chauvinism here, companies shouldn’t be able to pawn off responsibility for safer workplaces on their employees.
From nursing homes to Amazon warehouses to federal prisons, workers are getting sick because their bosses didn’t take necessary safety precautions.
Demands for more corporate immunity have always been at odds with the facts on the ground. But in the coronavirus era, the Republican Party’s push has turned reality upside down.
First, there is no tsunami of litigation coming to engulf the country. As a matter of law, it’s already extremely difficult for workers or consumers to succeed with tort claims. In most states, as long as a business shows that it followed regulations or guidelines, or even just took common-sense precautions, it will usually prevail. Mr. McConnell has said he doesn’t want to grant immunity to businesses that are grossly negligent or engage in willful misconduct, but that’s a very high bar to clear.
Some business groups say this is cold comfort: Even if they would eventually win a case, they are still forced to spend time and money defending against, and often settling, frivolous lawsuits by workers or customers who blame them for getting sick. But trial lawyers work on contingency, which means they get paid only if they win. That gives them a strong incentive not to bring lawsuits that are sure losers. This is all the more true in the case of the coronavirus, because its relatively long incubation period means it is nearly impossible to prove where someone caught it.
So far, the predicted wave of lawsuits has not materialized. Instead we’re seeing suits like the one brought against Smithfield, which asks not for money damages but for the business to take the most basic safety precautions.
Second, tort law is the province of the states, which can help incentivize good behavior by allowing people to sue when they are harmed by a business’s negligence or wrongdoing. Any immunity provision passed by Congress would pre-empt these state laws, making it virtually impossible for them to protect their own citizens. Such a provision might even violate the Constitution, said David Vladeck, a law professor at Georgetown who testified before the Senate.
Everybody wins when businesses follow clear, science-based guidelines to protect health and safety: Workers and customers are less likely to get exposed to the virus, and businesses are less likely to get exposed to litigation. So where are those guidelines? In April, the Centers for Disease Control and Prevention proposed a 63-page list of safe reopening guidelines for businesses across the board: schools and day care centers, restaurants and bars, churches and mass-transit systems. But the Trump administration refused to release the list, saying it was too prescriptive and would make it harder for the economy to fully reopen. (On Thursday, the C.D.C. released an abbreviated version of the list.)
Despite pleas from organized labor, the Occupational Safety and Health Administration has so far shirked its responsibility to safeguard workers, refusing to offer anything beyond mild suggestions. This has already had consequences: A federal judge dismissed the case against Smithfield Foods in Missouri, saying it was OSHA’s job to hold businesses responsible for worker safety.
It’s no surprise that many businesses are confused about what they should do, and fearful of what might happen if they don’t do it. The answer is to give them good, clear and mandatory guidelines, not immunity from liability. Until those guidelines are in place, it’s premature to talk about granting even more immunity to businesses.
Everyone wants the American economy to reopen. The point here isn’t to punish businesses in that process, it’s to incentivize them to protect their workers and customers. This, more than any immunity, will ensure that millions of Americans can get back to work as safely and as quickly as possible.