When members of both parties agree on anything on Capitol Hill, it’s worth taking note. A striking bipartisan consensus arose in the Senate Judiciary Committee this week on this point: The Trump administration hasn’t done its part to assure businesses of how they can open responsibly, leaving many of their owners unsure of how to proceed and worried about the consequences if they get it wrong. Even as the president has been crying out for the “liberation” of an economic restart, the White House has failed to lay the groundwork for it.
The committee focused primarily on the question of whether to give businesses immunity from lawsuits over COVID-19. That wouldn’t be a good idea. But luckily, the hearing unearthed the real remedy to reassure businesses that it’s safe to reopen: giving them clear federal rules that will protect both well-meaning business owners and the ability to hold bad actors accountable. Now it’s up to the Trump administration to make that happen.
The committee hearing on Tuesday arose because Republican leaders in Congress say that people who contract COVID-19 are likely to file a deluge of frivolous lawsuits claiming they got the virus on the job or while patronizing a business. Senate majority leader Mitch McConnell has said that Congress should raise the bar for these kinds of lawsuits in future relief packages, or else the mere fear of such cases will force too many businesses to stay closed.
There already have been a few wrongful-death lawsuits over COVID-19, but it’s not necessarily true that a wave of such cases is coming — or that they will be successful. Given how easy it is to transmit the coronavirus, it would be hard for plaintiffs to definitively establish where they or a deceased family member caught COVID-19, let alone that it resulted from a business’s negligence. Even if someone wanted to try to make such a claim, many lawsuits would be blocked either by state laws that route injury complaints through the workers’ compensation insurance system or by employment agreements that require workers to go to arbitration rather than the courts. On top of that, several states, including Massachusetts, have already raised the bar for negligence lawsuits against nursing homes, hospitals, and other entities that have been hit hard by COVID-19.
There are sure to be exceptional cases in which it might be relatively easy to establish where someone contracted COVID-19. As we’ve seen with the devastating spread of COVID-19 in meatpacking plants where employee health hasn’t been a priority, certain workplaces are likely to become obvious hot spots of infection. It would be terrible for Congress to reduce the threat of lawsuits for employers in such egregious situations. The prospect of being sued for negligence helps to hold companies accountable for public-health and safety regulations that the government can’t enforce through inspections alone.
The flip side of that coin is that businesses can protect themselves against lawsuits with what’s known as the regulatory compliance defense. David Vladeck, a law professor at Georgetown University who once headed the Bureau of Consumer Protection in the Federal Trade Commission, testified to the Judiciary Committee that companies generally are not vulnerable to negligence lawsuits if they can show they reasonably followed government safety regulations. As a result, he said, “the best way to reduce liability is for agencies to step up and issue guidelines.”
Unfortunately, the federal government hasn’t delivered enough specific rules for workplace safety during the COVID-19 outbreak. The Trump White House delayed the release of detailed advice from the Centers for Disease Control and Prevention on how bars, restaurants, summer camps, and “employers with vulnerable workers” should operate. And while the Labor Department’s Occupational Safety and Health Administration, known as OSHA, has issued general guidance about COVID-19, compliance is voluntary. OSHA hasn’t specified mandatory, enforceable obligations for businesses.
Lindsey Graham, the South Carolina Republican who chairs the Senate Judiciary Committee, asked every witness in Tuesday’s hearing — a group that included advocates for business, labor, and academia — whether “the country would be better off” if OSHA issued industry-specific guidelines about how businesses should protect workers and customers. The witnesses all said yes. (The labor representatives added, however, that it also mattered whether anyone would enforce those rules.)
Graham said insufficient federal standards would make it hard to craft a bill that could strike a balance between increasing legal protections for responsible businesses and making sure “bad actors are not given a break.” Clear workplace standards, “whether they come from the CDC, OSHA, they need to be out there so people can understand what’s expected of them,” Graham said. “The big hole in the puzzle right now is the standards.”
This is another glaring example of how Trump has bungled the coronavirus. His administration’s biggest failure has been its inability to stimulate the testing capacity necessary to contain the spread of the virus, as Dr. Anthony Fauci and other experts made clear to a separate Senate panel Tuesday. But the hearing on business immunity highlighted Trump’s incompetence from another angle: His administration’s aversion to regulation is dangerous for workers and creates uncertainty for businesses.
If the president expects businesses to reopen, his administration ought to specify how they can do so without substantially increasing the risk of spreading the lethal coronavirus. Writing clear and meaningful rules would require careful, methodical work grounded in scientific evidence, which isn’t the Trump administration’s kind of thing. Regulations on social distancing, masks, or plastic barriers may make it difficult for some businesses to operate until the outbreak is over. But that would be a better outcome than having Congress grant legal immunity that reduces the incentives for businesses to deploy sufficient protections. If that were to happen, employees would be shouldering the risk with one less avenue for recourse.
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