On Monday, Senate Republicans unveiled their opening offer in negotiations over new legislation to mitigate the economic impact of the Covid-19 pandemic. The Senate GOP’s $1 trillion package of proposals arrived just days before enhanced unemployment benefits are set to expire at the end of July, meaning that many jobless Americans’ incomes will drop precipitously if a new bill isn’t signed into law this week.
One of the centerpieces of the Senate Republican package is a bill that would give businesses sweeping immunity from lawsuits alleging that they helped spread the coronavirus to their workers or customers.
It’s such a high priority that Senate Majority Leader Mitch McConnell (R-KY) told CNBC on Tuesday that Republicans are “not negotiating over liability protection” — a position that, if true, could blow up any possibility of additional pandemic relief becoming law.
Democratic House Speaker Nancy Pelosi, warned that McConnell’s refusal to negotiate over the proposed liability shield is a sign that McConnell “does want to get to an agreement” on additional pandemic relief.
Pelosi reacts to McConnell’s statement earlier today that he’s not willing to negotiate on liability protections: “It seems to me that Senator McConnell really doesn't want to get an agreement.”— Igor Bobic (@igorbobic) July 28, 2020
Senate Democratic Leader Chuck Schumer (D-NY) echoed Pelosi, saying that “we asked [Treasury Secretary Steven] Mnuchin and [White House Chief of Staff Mark] Meadows to go back and see if Mr. McConnell really meant that. Because that would mean he’s probably not interested in any bill at all.”
It’s easy to see why Democrats feel this way. When this bill’s critics describe the Republican proposal, they frequently use a strong word: “impossible.” As Sen. Dick Durbin (D-IL) said in a Senate floor speech denouncing the bill on Tuesday, the legislation “makes it nearly impossible to prevail” in court against a company accused of taking inadequate measures to slow the spread of the pandemic.
The bill, entitled the SAFE TO WORK Act, places a wide array of obstacles before workers and consumers who allege that they were infected due to a business’s negligence — or even against plaintiffs who allege they were infected because of truly reckless behavior by a business. Many of these obstacles are significant barriers to liability in and of themselves. But the combination of these many new hurdles could give businesses all but total immunity from lawsuits alleging that they allowed the virus to spread unchecked.
As Remington Gregg, a lawyer with Public Citizen, told me, “it is near impossible for a suit” to even get to court under the Republican proposal. And once a suit commences, proving a plaintiff’s case is “almost impossible.”
Among other things, the bill requires plaintiffs to identify “all places and persons” they visited and “all persons who visited [their] residence” two weeks prior to the onset of symptoms. It shields businesses from liability unless they acted in “reckless disregard” of their legal obligations — while simultaneously reducing the scope of those obligations in many jurisdictions. It imposes a heightened burden of proof on plaintiffs. It shields many businesses so long as they have a “written or published policy on the mitigation of transmission” that aligns with “applicable government standards.” And it drastically limits the remedies available to most plaintiffs who somehow overcome all of these hurdles.
Oh, and one more thing. It allows businesses to sue — and collect damages and attorney’s fees from — anyone who so much as writes a letter to a business demanding compensation for certain Covid-19-related legal violations, if the allegations in that letter are later deemed “meritless.” And it allows the United States attorney general to sue law firms, unions, and other entities that are “engaged in a pattern or practice” of seeking compensation for similar violations.
The bill, in other words, does not simply make it nearly impossible for Covid plaintiffs to prevail in court. It also discourages lawyers from even taking on clients with the coronavirus who want to hold a business accountable for their infection, because those lawyers could potentially face crippling costs for representing such clients.
What the bill does
The Republican proposal imposes a wide array of barriers on plaintiffs alleging that they became infected with Covid-19 due to the negligent (or worse) actions of their employer or a business that they patronized. Think of a meat-packing plant that forbids its workers from wearing masks, and that forces them to work in close quarters even though the bosses are aware that workers are becoming sick.
As noted above, these barriers require plaintiffs to give a detailed account of where they’ve been and who they’ve been in contact with prior to becoming infected; they limit the amount of money damages available to most plaintiffs; and they actively discourage lawyers from taking clients with Covid-19-related concerns.
Perhaps most significantly, the bill drastically alters the legal and evidentiary standards governing suits against a business accused of spreading the coronavirus.
Though tort law varies by state. plaintiffs who claim they were injured by a business will typically prevail if they can show that the business was negligent in allowing an injury to happen. As Gregg explains, that means that the business failed “to take reasonable care under the circumstances.”
There is already a great deal of flexibility built into this “reasonable care” standard. Courts, for example, might excuse an error by an emergency room physician who is so inundated with Covid-19 cases that they can barely focus on each individual patient, even though they might hold another doctor liable for the same error if that doctor were acting in ordinary circumstances.
Similarly, a business that did not require its employees to wear masks at the beginning of the pandemic, when little was known about the disease and how it spreads, would likely not be liable for this mistake. But a business that did not require masks after the benefits of mask-wearing became widely known is more likely to be deemed negligent.
Negligence suits are normally weighed under a “preponderance of the evidence” standard, meaning the plaintiff must show that the entirety of the evidence supporting their position is more persuasive than the evidence supporting the defendant’s position.
The SAFE TO WORK Act makes several significant changes to this ordinary framework.
First, it requires plaintiffs to prove far more than negligence to prevail. Rather, the plaintiff must show that a business committed a “conscious, voluntary act or omission in reckless disregard” of its legal obligations to that plaintiff. It’s not enough, in other words, for a plaintiff to show that a business failed to “take reasonable care” to prevent the spread of Covid-19. Rather, plaintiffs will generally have to show that the business made a conscious choice to ignore the danger that its actions would spread the disease.
Second, a plaintiff has to do more than show that a preponderance of the evidence supports their claims. Rather, they must prove their claims by “clear and convincing evidence,” a heightened burden of proof that courts typically reserve for unusually sensitive cases. For instance, if the government wants to confine a person with mental illness against their will because they believe that person to be a threat to themselves or others, the government typically must prove that such confinement is justified by clear and convincing evidence.
Third, the bill specifically requires a plaintiff to prove — again, by clear and convincing evidence — that the business’s reckless behavior exposed them to the coronavirus, and that this “actual exposure to coronavirus caused the personal injury of the plaintiff.”
The implications of this requirement are profound. Imagine a worker in a meat-packing plant who is infected on the job due to unsafe working conditions. Now imagine that, on the same day that the worker becomes infected, they make a weekly grocery shopping trip. Under the Republican proposal, this worker has a heightened burden to prove that they became infected at work and not at the grocery store. That’s a difficult task under a preponderance of the evidence standard. It could very well be impossible under the more demanding clear and convincing evidence standard.
It should be noted, moreover, that these are only some of the additional burdens imposed on coronavirus plaintiffs by the SAFE TO WORK Act. Taken together, the many burdens imposed by this law will make it extraordinarily difficult for such plaintiffs to even find a lawyer willing to take their case. They will make it unusually hard for that lawyer to even file a complaint. And, even if the case proceeds to trial, the plaintiff will face a nearly insurmountable burden of proof.
On top of all that, if the plaintiff does prevail, the bill places strict limits on the amount of money damages they are able to collect unless they can show that the business engaged in “willful misconduct.”
The case for the Republican proposal
The SAFE TO WORK Act opens with nearly a dozen pages of findings laying out Senate Republicans’ case for immunizing businesses from Covid-19-related liability. “To halt the spread of the disease,” the bill notes, “state and local governments took drastic measures. They shut down small and large businesses, schools, colleges and universities, religious, philanthropic and other nonprofit institutions, and local government agencies.”
But now, the United States faces an “economic storm,” and additional government spending “alone cannot protect the United States from further devastation.” Rather, “only reopening the economy so that workers can get back to work and students can get back to school can accomplish that goal.”
The bill, in other words, fairly candidly places the goal of “reopening the economy” before the goal of continuing to halt the spread of Covid-19. The bill also claims that “one of the chief impediments to the continued flow of interstate commerce as this public health crisis has unfolded is the risk of litigation.” Such lawsuits “threaten to keep” many businesses and other institutions “from reopening for fear of expensive litigation that might prove to be meritless.”
There is little evidence, however, that Covid-19-related litigation is a major impediment to economic growth — or even that it is particularly common. Hunton Andrews Kurth, a multi-national law firm that primarily represents corporate clients, tracks coronavirus-related litigation within the United States. As of this writing, its database identifies 3,832 legal complaints filed since January 30 — the date the first legal complaint in the database was filed — relating to the disease. (Disclosure: My father was a partner at Hunton & Williams, one of two firms that merged to form Hunton Andrews Kurth.)
Nearly 4.000 cases may seem like a lot — but about 16 million civil lawsuits were filed in state trial courts in 2018, according to the Conference of State Court Administrators and the National Center for State Courts. So the 3,832 coronavirus-related cases identified by the Hunton database are a tiny fraction of the American justice system’s civil docket.
Most of the cases flagged by the Hunton database, moreover, are not the sort of personal injury or employment-related suits targeted by the SAFE TO WORK Act. Some, for example, involve contractual obligations that could not be performed due to the pandemic. Others are suits brought by students seeking refunds from colleges or universities. Many are suits challenging state public health orders requiring businesses to close.
Fewer than 100 of the cases listed in the Hunton database involve personal injury or wrongful death suits brought on behalf of people who claim they were exposed to the coronavirus in a workplace or other business setting.
So what happens now?
Many opponents of the Republican proposal doubt that Senate leaders actually believe this bill will become law. “It’s very clear that this is not a serious attempt at policymaking,” Gregg, the lawyer from Public Citizen, told me. McConnell’s threats to not negotiate notwithstanding, the SAFE TO WORK Act reads more like an intentionally provocative entry into negotiations with congressional Democrats than a proposal that has any serious chance of passing muster with those Democrats.
“I’ll bet you dollars to donuts that [Republicans] will come out and say ‘we’re willing to compromise,’” Gregg told me, though he was concerned that, by taking such an extreme position in their initial proposal, Senate Republicans could tilt the negotiations and the final compromise in their direction.
It’s unlikely that Republicans will agree to a compromise that does not include some kind of liability protections for businesses in the broader package of pandemic relief legislation. McConnell has repeatedly claimed that some kind of liability shield is a “red line” and that “we can’t pass another bill unless we have liability protection.”
So what would a reasonable compromise look like? University of Chicago law professor Daniel Hemel and Northwestern University law professor Daniel Rodriguez lay out one possibility in an op-ed that ran Tuesday in the Washington Post. Instead of just giving a blanket liability shield to businesses, they propose Congress should reward businesses that promote public health with a limited degree of lawsuit immunity.
Suppose that a hairdresser tests positive for Covid-19. The best way to prevent more infections would be for this individual’s employer to immediately identify who that hairdresser’s clients were in the last several days, and to call them and warn them that they may have been exposed to the virus.
But there’s a problem, Hemel and Rodriguez explain. “The salon owner worries that by doing so, she could be opening the door to lawsuits from customers who become ill.”
To avoid this problem, Hemel and Rodriguez propose a targeted fix: “A safe harbor from tort liability for businesses that inform customers about potential exposures within 24 hours of the business receiving notice that one of its employees or another customer on its premises had covid-19.”
Such a proposal would not be without costs. As the two professors acknowledge, it could prevent some customers from being compensated by genuinely negligent businesses. And a safe harbor for businesses that immediately warn customers “might weaken incentives for businesses to take safety precautions in the first place.” But these costs would, at the very least, have offsetting benefits — Hemel and Rodriguez’s proposal would give businesses a powerful incentive to warn customers of possible infection.
When I asked Hemel about this proposal, he pointed to a couple examples of similar legal rules that protect negligent companies or individuals that try to correct their error. The Federal Rules of Evidence, for example, provide “that subsequent remedial measures cannot be used to prove negligence, culpable conduct, product defect, or failure to warn.”
For example, if Toyota recalls cars with a defective airbag, the fact that a recall happened cannot be used to prove that the airbag was defective — because otherwise Toyota would be reluctant to conduct a recall in the first place.
Similarly, Hemel noted, many states have “I’m sorry” laws that provide that “if a doctor apologizes to you for a medical error, you can’t use the apology as evidence in your malpractice suit.”
As Hemel admits, neither of these examples are a “perfect analogy” for his and Rodriguez’s proposal. Though lawyers cannot cite a product recall as evidence that a product was defective, they still might be able to prove that product defective by other means. Hemel and Rodriguez, by contrast, propose giving much broader immunity to businesses that swiftly warn their customers about possible infection.
But their proposal is also fairly narrowly targeted and, unlike the euphemistically named SAFE TO WORK Act, Hemel and Rodriguez accept that protecting the public health is a valuable goal that shouldn’t be undermined by over-broad legal immunity.
Republicans waited until the last moment to even offer a proposal for the next round of pandemic relief legislation. If that legislation does not pass in just a few days, millions of Americans’ incomes will fall off a cliff — and the nation could plunge deeper into economic ruin.
And yet, McConnell insists that no bill will pass unless it includes a liability shield. If he sticks to that position, that’s not just terrible news for the country — it’s likely to be a disaster for the Republican Party in an election year.