Labor & Employment Law Daily Business coalition calls on Congress to pass COVID-19 liability protections
Monday, June 1, 2020

Business coalition calls on Congress to pass COVID-19 liability protections

By Pamela Wolf, J.D.

Liability protections “should be limited in scope and preserve recourse for those harmed by truly bad actors who engage in egregious misconduct,” according to the coalition.

The U.S. Chamber of Commerce and more than 200 trade associations and other groups are urging federal lawmakers “to quickly enact temporary and targeted liability relief legislation related to the COVID-19 pandemic,” saying that businesses, nonprofit organizations, educational institutions, and healthcare providers and facilities should be safeguarded “from unfair lawsuits so that they can continue to contribute to a safe and effective recovery from this pandemic.”

Hot-button issue. The question of whether Congress should extend protections against liability for failing to take reasonable and known safety measures to protect workers from COVID-19 infection is highly charged, with opponents arguing that employers already have all the protection they need so long as they follow guidelines such as those issued by the CDC and OSHA. Opponents also point to media accounts of employers that were slow to put protections into place even as COVID-19 infection spread through the workplace and workers asked for protections. Should these employers get a pass?

But legislation addressing liability protections would not be aimed at letting bad actors off the hook, as Senator Lindsey Graham (R-S.C.) put it at a hearing examining the liability question. “The federal role in creating liability protections needs to be limited,” he said. “We’re not going to preempt all state laws here about everything. We need to make sure that bad actors are not given a break, but that the people who are trying to do it right can reopen their businesses in their communities, schools, and colleges with the assurance that if you practice the right procedures that you don’t have to worry about getting sued on top of everything else.”

Threat of lawsuits is real. Clearly the business community is very concerned about facing a deluge of lawsuits alleging harms resulting from purported lapses in COVID-19-related protections in a rather fluid pandemic that has been marked by a great deal of uncertainty. And the lawsuits are already starting to pile up.

“Absent a targeted safe harbor for those that work to follow applicable guidelines, the fear and uncertainty from boundless liability threatens to impede our country’s social and economic recovery,” the business coalition said in a May 27 letter to federal lawmakers. “In the wake of prior crises, Congress came together to pass timely and targeted liability protections with strong bipartisan support because lawmakers understood the acute economic threat of lawsuits at moments of maximum economic vulnerability. And while Congress has acted to provide some limited COVID-19-related liability protections for volunteer healthcare providers and some manufacturers of PPE in the CARES Act, much more must be done.”

Temporary protections. The coalition is asking members of Congress to quickly enact temporary liability protections for:

  • Businesses, nonprofit organizations, and educational institutions that work to follow applicable public health guidelines against COVID-19 exposure claims;
  • Healthcare workers and facilities providing critical COVID-19-related care and services;
  • Manufacturers, donors, distributors, and users of vaccines, therapeutics, medical devices, as well as PPE and other supplies (such as hand sanitizer and cleaning supplies) that are critical to the COVID-19 response; and
  • Public companies targeted by unfair and opportunistic COVID-19-related securities lawsuits.

In addition to being temporary, the coalition said that the liability protections “should be limited in scope and preserve recourse for those harmed by truly bad actors who engage in egregious misconduct.”

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