Senate Majority Leader Mitch McConnell likes to talk about an "epidemic of lawsuits" that will come "on the heels of the pandemic we're already struggling with" to justify the liability protections line in the sand he created for a coronavirus relief bill. That's the ultimatum he came up with after his "let the states go bankrupt" bottom line was roundly rejected by even Republicans. He soon pivoted to pushing the U.S. Chamber of Commerce's wish list of "relief" measures, at the top of which is the removal of legal liability for businesses putting their employees at risk of death.
McConnell's new bottom line, you won't be surprised, is bogus. There is not a rush of new personal injury cases related to coronavirus. Politico reports on an analysis by the American Association for Justice of a litigation tracker run by a prominent law firm. There have been 3,727 coronavirus-related cases filed since March. Less than 5% of them, 185 to be exact, fall in the category of personal injury, i.e. someone suing because of exposure or potential exposure to the virus. The vast majority have been related to insurance claims and civil rights, including virus deniers who are challenging states' stay-at-home orders.
“The evidence suggests there has been no explosion in legal claims related to Covid,” said Nicole Berner, general counsel for the Service Employees International Union. Berner is correct in saying that this is purely a big business effort to "escape from legal liability," with a big assist from anti-labor Republicans. "We need now more protections, not less." It's also a way to push Donald Trump's premature reopening plan, allowing businesses, schools, and non-coronavirus healthcare providers to open up even when they know they're risking employees' and customers' health, and potentially lives.
Democrats remain opposed to the liability shield. They argue that the Occupational Safety and Health Administration could and should create a federal standard that would establish protection from exposure. It was directed in a previous coronavirus package, but hasn't been done yet. "We think there's a path to talk about protecting businesses and workers and customers who come in, and that is our OSHA provision,” House Speaker Nancy Pelosi said earlier this month, explaining her opposition to McConnell's push. Sen. Patty Murray, the top Democrat on the Senate Labor Committee, agrees. A federal standard would allow employers to "know what they need to do," she said. “They don’t want an environment that makes them less competitive if they’re doing the right thing; what they want is standards so that everybody can live up to the same standards and make sure workers are protected,” Murray continued. “This is important to their bottom line.”
McConnell's bill says employers only need to make "a reasonable effort" to comply with public health guidelines to be immune from liability. That, on top of already existing forced arbitration and safety standards “would make it virtually impossible for workers to hold corporate employers accountable,” said Berner of SEIU. It would allow corporate employers to endanger workers. Period. “The safe harbor here is basically a safe harbor for any business doing anything,” Public Citizen president Robert Weissman said. “There’s zero happening from the federal government for enforcement,” he added. “So workers really do need access to the courts.”
Specifically, BIPOC workers. “Bad policy choices and years of discrimination and structural barriers to economic opportunity have left Black and brown people more likely to contract and die from Covid-19,” said LaShawn Warren, executive vice president of government affairs at the Leadership Conference on Civil and Human Rights. “And these are the very same people who will be most harmed by giving businesses sweeping immunity from accountability—low-wage workers, women of color, Black and brown people.” That's a feature, not a bug, in McConnell's plan.
And here's the ugly squeeze Republicans are trying to put the unemployed in, why they're insisting that more generous unemployment insurance benefits (UI) have to end: Workers are going to be less likely to return to a workplace if they know their employer doesn't have to protect their health. If a worker has a reasonable option not to return to a dangerous workplace in the form of a sustainable UI benefit, they're even less likely to come back. Making homelessness and starvation a threat again will force them back into a potentially deadly workplace. What Republicans aren't considering is that these protections work on the public side as well—meaning consumers won't have any protections, either. And a consumer is going to be a lot less likely to go into a business that isn't operating safely.