Senate Tackles Pandemic Liability for Essential Businesses

(Photo by Jack Rodgers/Courthouse News Service)

WASHINGTON (CN) — Members of the U.S. Senate Judiciary Committee expressed concern Tuesday about the possibility of an overwhelming number of lawsuits filed by employees challenging the necessity of their workplace exposure to Covid-19.

With an exasperated health care system tattered in the wake of a Covid-19 response, lawmakers have feared litigation by employees against businesses deemed essential could flood the judicial system.

Senate Majority Leader Mitch McConnell addressed the issue from the Senate floor Tuesday, saying a “second epidemic of frivolous lawsuits” could stunt an economic recovery.

But Senator Dick Durbin, a Democrat from Illinois, said this outbreak of lawsuits was less than startling, contrary to McConnell’s claims. This year, there have been 958 cases related to Covid-19 filed nationally, he said. Only 27 of those cases are personal injury lawsuits, while another nine are related to medical malpractice.

“The others, 264, were over the conditions in prisons, 171 were insurance battles as to what the policy really means, but when you consider that we’ve had 1.3 million Americans diagnosed with Covid-19, the fact that only nine lawsuits have been filed — whether they’re frivolous or serious — does not suggest a tidal wave of lawsuits,” Durbin said.

For business owners like Kevin Smartt, the chief executive office of Kwik Chek Convenience Stores who testified Tuesday, navigating operating directions given to essential businesses by the Department of Homeland Security is difficult.

While the Trump administration said in March that companies like Smartt’s operating in the food supply chain “have a special responsibility to maintain your normal work schedule,” Smartt said companies like his shouldn’t “be punished for keeping our doors open.”

“If a company makes a good faith effort to implement health and safety precautions, it should not have to shell out money and expend precious resources to defend itself from cases that are extremely difficult to prove or disprove,” Smartt testified.

Georgetown Law School professor David Vladeck testified these protections could complicate the judicial system. Businesses like Smartt’s, he said, are already protected from liability through a litany of other provisions. Science-based, Covid-19 business guidelines would provide the liability standards for legal procedures, he said, but Congress bestowing immunities on companies through legislation would be “unprecedented.”

“Workers and consumers are going to open this economy, not government-sponsored immunity,” Vladeck said. “We all know that large segments of the public are still justifiably fearful about reopening. Granting immunity would only feed those fears. Immunity sends the message that precautions to control the spread of the virus is not a priority.”

Rebecca Dixon, executive director of the National Employment Law Project — an employee law advocacy group — said improving workers’ health also benefits the interests of public health.

Important to remember, she testified, are people of color who have historically been underserved by worker protections — and when the economy reopens they will disproportionately return to jobs putting them in harm’s way. 

“In America, opportunity and risk have always been segregated and stratified by race and gender,” Dixon testified. “In fact, 87% of occupations in the U.S. can be classified as racially segregated. Even when policies have been raised, silent on their face, this country has done a poor job at providing equal rights, benefits and protections for workers of color and immigrants.”

Dixon testified that additional standards from the Occupational Safety and Health Administration would be beneficial to workers of color.

“I think we have to look at the intent and the impact,” Dixon said. “So, we can argue about intent, but the impact of not having enforceable OSHA standards is that black and brown workers are dying and that they’re spreading the Covid-19 to their families and their communities. And we should ask ourselves, ‘Why haven’t we done something about this?’ Because we know what the impact is.”

Senator Kamala Harris, a Democrat from, picked up on this thread Tuesday, saying lawmakers needed to recognize workers were deserving of protection, including passing legislation to bolster support for workers’ compensation programs which in 49 states, employers are required to possess, she said.

Anthony Perrone, the president of United Food and Commercial Workers International, briefly discussed the number of people affected by the virus who work at meatpacking factories around the nation. About 10,000 meatpacking workers have been exposed the virus through their work and 63 have died, he said.

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