Draft legislation circulating in the US Senate would shield employers and health care industry executives from legal consequences when their business decisions injure or kill workers, customers, and patients during the COVID-19 outbreak.
The unprecedented proposal to gut legal protections — which is being depicted as moderate compromise legislation and potentially attached to badly needed state and local aid — follows a Harvard study showing a surge in workers’ COVID deaths following their requests for government regulators’ help.
The Huffington Post reported on Monday that Democratic senator Joe Manchin is joining GOP senators in backing corporate immunity legislation. A draft of the legislative language that we obtained includes provisions that would:
- Shield companies from all coronavirus-related actions retroactively — for at least one year, or until the pandemic is over — except in cases of “gross negligence.” Most coronavirus-related lawsuits would be forced into federal courts, which are considered more friendly to business interests.
- Restrict the enforcement of long-standing laws such as the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970, and the Civil Rights Act of 1964 when companies say they are attempting to comply with governments’ coronavirus guidance.
- Empower the US attorney general to deem coronavirus-related lawsuits from workers, customers, and attorneys “meritless” and then file civil actions against them as retribution. In order to “vindicate the public interest,” courts would be allowed to fine respondents up to $50,000.
- Shield health care executives from lawsuits through language copied word for word from a statute passed in New York by Democratic governor Andrew Cuomo amid a spate of COVID deaths in that state’s nursing homes.
“Substantially Immunizing Businesses From Risky Conduct”
The legislation defines gross negligence as “a conscious, voluntary act or omission in reckless disregard of (A) a legal duty; (B) the consequences to another party; and (C) applicable government standards and guidance.”
“We are wiping out the laws of negligence,” said Michael Duff, a former National Labor Relations Board official who is now a professor at the University of Wyoming College of Law. “As a practical matter, we are substantially immunizing businesses from risky conduct.”
“What they want to do in this bill is throw every lawsuit out before it conceivably gets to a jury,” he said. “It means that a judge has the authority to dismiss a case right up front. Because there’s no way that plaintiffs are going to be able to meet this standard — gross negligence.”
He added that the provision empowering the attorney general to punish plaintiffs “is a bald-faced threat of reprisal for having the temerity to pursue rights.”
“That Is Not a Negotiation — That Is a Collapse”
Lawmakers released a separate $748 billion COVID-related proposal that includes expanded unemployment benefits, an extension of the Paycheck Protection Program, and funding for COVID-19 testing and vaccine distribution. It would also reauthorize a CARES Act provision allowing the government to funnel money to out-of-work defense contractors.
The latter package did not include a new round of $1,200 stimulus checks sought by Vermont Independent senator Bernie Sanders and Missouri Republican senator Josh Hawley. Only $188 billion of the proposal is new stimulus money — the other $560 billion is repurposed from the CARES Act, passed this spring.
Sanders criticized Democrats for their handling of coronavirus relief talks. “What kind of negotiation is it when you go from $3.4 trillion to $188 billion in new money?” he said. “That is not a negotiation. That is a collapse.”
According to Politico, representatives Josh Gottheimer, D-NJ, and Tom Reed, R-NY, the cochairs of the House Problem Solvers Caucus, are pushing to combine the two bills into one $908 billion proposal.