Republicans' COVID-19 'Liability Shield' Is So Much Worse Than You Thought
As we've mentioned a time or five, there's one thing Mitch McConnell wants in the new COVID-19 "stimulus" bill, and that's a blanket gift of legal immunity for American employers whose negligence led to employees or customers contracting the virus. Because how can America get back to work if meatpacking plants can be sued for crowding employees into unsafe conditions, limiting testing, and generally making Upton Sinclair's The Jungle look like a Sunday in the park?
Now that there's an actual GOP stimmy package out there, we can see the details of the legislation, and oh golly, is it bad, according to Los Angeles Times business columnist Michael Hiltzik, who says the proposal is "more vicious than you could possibly imagine." Which must mean it's a Thursday in 2020. Even though I've been writing about this gross GOP obsession since McConnell said it was an absolute "red line" item for any new stimmy (back in freaking APRIL), Hiltzik's rundown of the bill's features left me whomperjawed. These bastards are evil, and their bill is evil, but they won't feel bad about it, not one bit.
Despite language saying it would still allow lawsuits against employers who did very bad things, Hiltzik explains the bill would "erect almost insurmountable obstacles to lawsuits by workers who become infected with the coronavirus at their workplaces." Employers could entirely escape being sued if they show they took some — any— minimal actions to promote safety, even if actual practices at the workplace were negligent.
The bill largely preempts most federal worker safety protections, and even overrides the (relatively rare) state laws that provide robust protections for workers. And for a real kick in the pants, the thing would actually "allow employers to sue workers for demanding safer conditions." The comprehensive nastiness of the thing is impressive, in a doomsday device sort of way.
But wait, aren't "frivolous lawsuits" a real risk that could keep the economy from bounding back from the Rona Recession? That's McConnell's talking point, and we're sure a Republican would never fib about such a thing.
Just to give columnists an easy bit of hypocrisy to point out, the bill has the Luntzian (or perhaps Orwellian) title "Safeguarding America's Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy Act," aka the "SAFE TO WORK (E) Act." Its stated purpose is to discourage "insubstantial lawsuits relating to COVID-19," although it doesn't quite define "insubstantial."
As Hiltzik points out, though, litigation is the primary means of American labor safety enforcement (and Crom knows the Trump administration is even worse than others at enforcing worker safety). So what would this sucker do?
For starters, it would
supersede such federal worker safeguards as the Occupational Safety and Health Act of 1970, the Fair Labor Standards Act of 1938, the Americans with Disabilities Act of 1990 and the Genetic Information Nondiscrimination Act of 2008, among others.
In plain English, the Republicans are proposing to eviscerate almost all workplace protections at the moment when the threat to workers' health may be its highest in a century. Let's not overlook that federal enforcement of workplace safety is anything but strong to begin with. The maximum OSHA penalty is $13,494 per violation.
OSHA penalties are so low, in fact, that Economic Policy Institute boffins Celine McNicholas and Margaret Poydock say companies simply factor in such fines as a standard cost of business.
But wait! The bill would allow lawsuits to be pursued in cases of "gross negligence or willful misconduct," as long as plaintiffs can show the defendant was at fault by presenting "clear and convincing evidence." That sounds like something you could still do, if you were wronged. At least, if you're not a liability attorney.
Hiltzik explains those are actually far more stringent standards than in normal liability cases, which require that fault be shown by a "preponderance" of evidence. Virtually every other part of the bill is designed to make lawsuits prohibitively difficult. All COVID-19 claims would be heard in federal court, which would make the cases more expensive from the get-go.
And look at THIS shit:
In their initial pleadings, plaintiffs would have to list "all places and persons" they had visited and all persons who visited their home during the 14 days before they suffered symptoms of COVID-19.
They would have to explain specifically why they believed that none of those persons or places were the cause of their infection. They would have to submit "proof" of the employer's "particular state of mind."
By contrast, it's miraculously easy for employers to escape any liability at all. They'd merely
have to show that they had been "exploring options" to comply with federal employment law, or had determined that the risk of harm to public health or the health of employees could not be "reduced or eliminated by reasonably modifying policies, practices, or procedures."
In other words, an employer could exempt itself from federal labor law by examining its "options" or deciding that maintaining a safe workplace was just too darned hard to achieve. If a business issued or posted a written policy on limiting transmission of the coronavirus, that would be enough to achieve immunity from lawsuits.
Post a CDC handout on how to wash your hands and keep socially distant, and hooray, you're safe from a lawsuit, even if you cram employees onto a line where they're breathing on each other. The handout said that's a bad idea, so you're covered!
But wait, there's more! The "measure also says that a lack of a written policy can't be held against the business in court."
And to top it off, the whole shebang strictly limits damage awards, which would have the net result of making attorneys far less likely to take cases in the first place, since most work on a contingency basis and their fees comes out of those awards.
Then there's the provision allowing employers to sue workers who seek damages in a COVID-19 case. That's a bit complex, so go read the column for the details, but it basically comes down to this: If workers file a lawsuit and offer to settle out of court — a pretty standard practice in liability cases since nobody wants to go to trial — the employer can countersue the workers if the case is determined to be "meritless," which of course the bill doesn't define. And in a real fun twist, while damages for the rare workers who can actually win a lawsuit are strictly limited,
Unlike the limitation on damages elsewhere in the bill, by the way, the punitive damages that can be awarded to employers bringing these lawsuits aren't capped.
The bill would even allow the United States attorney general to sue plaintiffs in such cases, just to make sure nobody's taking advantage of the poor downtrodden corporations.
Jesus H Christ on a ventilator this is some seriously bad shit. This simply can't be allowed to become law. The GOP is trying to let negligent companies get away with murder. But hey, murder is necessary to keep the USA competitive, isn't it?
Yr Wonkette is supported entirely by reader donations. Please send us some money so we won't have to sue you for frivolous non-reading our dick jokes.
Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.