US Chamber expects another COVID-19 relief bill before July 4

Trade group wants protection from pandemic lawsuits

Republican Sen. Cory Gardner of Colorado is facing a tough reelection battle and eager to pass the outdoor bill. (Bill Clark/CQ Roll Call file photo)
Republican Sen. Cory Gardner of Colorado is facing a tough reelection battle and eager to pass the outdoor bill. (Bill Clark/CQ Roll Call file photo)
Posted May 21, 2020 at 3:36pm

One of the nation's most powerful trade groups expects Congress to pass another coronavirus relief bill, one including its legislative priorities, before the Fourth of July recess.

“There are a lot of differences, but the differences are not insurmountable between the House and the Senate, between the Republicans and Democrats,” said Neil Bradley, the U.S. Chamber of Commerce's chief policy officer, on a conference call with reporters Thursday.

Colorado Sen. Cory Gardner threatened on Wednesday to keep the Senate in session by opposing the unanimous consent to recess the week following Memorial Day, saying the Senate has to work on coronavirus relief legislation. The embattled Republican faces a tough reelection fight against former Gov. John Hickenlooper, a race that Inside Elections with Nathan L. Gonzales rates as “tilt Democratic.”

The chamber’s top legislative goal is a broad safe harbor from COVID-19-related lawsuits for businesses tied to guidelines set out by the Centers for Disease Control and Prevention and state health authorities. Basically, if companies follow the government suggestions, they shouldn’t face lawsuits, the chamber says.

“The approach needs to be timely, it needs to be targeted, and it needs to be temporary,” said Bradley.

The chamber has three other priorities for the next relief bill: additional help for the companies that’ll be the last to reopen and return to pre-pandemic levels of business, skills training for laid off workers whose jobs won’t return, and fiscal help for state and local governments.

Bradley said extending the economic bridge for industries that will take longer to return to normal could take many different forms, like modifying the Paycheck Protection Program or employee retention tax credits.

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Majority Whip John Thune, R-S.D., said Thursday morning that the Senate might try to pass legislation extending the time period for using the PPP forgivable loans. The House will vote next week on a bill that would lengthen the time period and make other changes to make the program more flexible.

FiscalNote, parent company of CQ Roll Call, has received a loan under the Paycheck Protection Program.

While the chamber wants Congress to bail out state and local governments inundated with red ink from a drop in tax revenue and an increase in costs related to fighting COVID-19, Bradley said it opposes Congress’ current approach of coming up with a topline figure and then distributing the money to states pursuant to some formula.

Pointing at the $150 billion Congress provided in March and the $500 billion for states and $375 billion for cities and counties in the big Democratic package the House passed last week, Bradley said those appropriations combined would give some smaller states more federal money than they normally get in revenue in a year. The March law gave each state a minimum of $1.25 billion — an amount that gets close to the $1.9 billion in tax revenue collected in fiscal year 2019 by Alaska, the state that took in the least in taxes.

A proposal from Sens. Bob Menendez, D-N.J., and Bill Cassidy, R-La., that’s gained momentum recently would provide states $500 billion and guarantee each at least $2 billion.

Bradley urged Congress to move quickly to help states with their shortfalls, pointing to the upcoming summer construction season for infrastructure projects.

Liability

On the issue of lawsuit liability, Harold Kim, president of the chamber’s Institute for Legal Reform, said there were four main concerns: exposure liability, products liability, medical malpractice and securities lawsuits.

Kim said businesses that follow health officials' guidance shouldn’t be held responsible if employees or consumers are exposed to the coronavirus at workplaces. Kim said he was particularly concerned with plaintiffs using public nuisance laws to avoid proving that employers’ negligence caused them to catch the virus.

Kim noted, however, that the chamber does not want to see any changes to workers compensation laws, which pay employees for lost wages and medical expenses for injuries caused on the job. Workers compensation claims are usually the only remedy employees can seek for workplace injuries, including diseases caught at work.

The chamber wants to see an expansion of a 2005 law that allows the secretary of Health and Human Services to issue a declaration giving manufacturers of medical countermeasures liability immunity. Secretary Alex Azar issued one in March for drugs, tests and ventilators used against COVID-19. That declaration covered frontline healthcare workers, but the chamber wants it to cover all end users as well.

Kim said Congress should also block medical malpractice suits against hospitals and doctors related to treatment of COVID-19. Congress gave a limited liability shield for healthcare workers who volunteered to treat COVID-19 patients, but that doesn’t cover hospitals or paid medical workers.

Consumer and worker advocates say the safe harbors are unnecessary and would be overly broad. Exposure and medical malpractice plaintiffs would need to prove that a business or doctor was negligent — acting in a way a reasonable person in the same situation wouldn’t. And in tort cases generally, following a government guideline is evidence of acting responsibly.

The chamber officials said they worry that the pandemic will inspire a rash of securities lawsuits against public companies that have seen their share values drop, akin to claims made against firms that have suffered data breaches. Those suits would rely on public statements made by the corporation shortly before or during the crisis that could been seen as misleading investors into believing that the coronavirus wouldn’t disrupt business significantly.

Rather than a blanket ban, the chamber wants to see Congress limit jurisdiction over the securities cases to federal courts and raise the pleading standards. The chamber is also calling for a stay on securities lawsuits until the crisis is over.