McCarthy: Liability shield shouldn’t be traded for more regulation

McConnell draft would protect businesses, schools and health care providers who follow public health guidelines in coronavirus-related lawsuits

House Minority Leader Kevin McCarthy is signaling he’s not willing to compromise with Democrats on liability protections in the next coronavirus aid package.  (Tom Williams/CQ Roll Call file photo)
House Minority Leader Kevin McCarthy is signaling he’s not willing to compromise with Democrats on liability protections in the next coronavirus aid package. (Tom Williams/CQ Roll Call file photo)
Posted July 17, 2020 at 4:14pm

Republicans don’t need to agree to worker protection standards they’ve repeatedly rejected in exchange for Democratic support for liability protections in the next coronavirus relief package, House Minority Leader Kevin McCarthy said Friday.

The top House Republican’s position sets up a conflict with Democrats, who have been pushing since March for an emergency Occupational Safety and Health Administration standard to strengthen protections for workers during the pandemic. Republicans have successfully prevented it from being included in prior packages.

“That is absolutely essential for us to have to protect our workers, at all times, but an even stronger one at the time of coronavirus,” Speaker Nancy Pelosi said Thursday, noting that Democrats would continue to push for OSHA regulations in the broader aid package that leaders are hoping to reach a deal on in the coming weeks.

House Democrats included the OSHA standard in a $3.5 trillion relief bill they passed in May. Senate Majority Leader Mitch McConnell is planning to soon release a GOP alternative totaling somewhere around $1 trillion that is unlikely to include the OSHA standard but will include liability protections for businesses, schools, hospitals and more.

Pelosi has argued that the OSHA standard is the best way to protect businesses because if they ensure their employees follow proper health guidelines they won’t be held liable for anyone contracting the virus.

A group of 10 House Republicans wrote to McCarthy on Tuesday making the same argument for the OSHA standard, but the minority leader signaled Friday he is not willing to compromise with Pelosi on the matter.

“I don’t know why she would propose things that she knows [have] already been rejected for so long,” he said. “If she is opposed to liability protection, I think she ought to go out and listen to America. You’d have a number of small businesses that would close. You’d have a number of schools that wouldn’t be able to financially move forward.”

The path to compromise seems clear — Democrats agreeing to some liability protections in exchange for Republicans finally consenting to the OSHA standard — but McCarthy is rejecting the idea of such a trade-off.

“I just hope at this moment in time that the Democrats can move aside from their politics, move aside from the concern of how much money they raise from trial lawyers and put the American public first,” the California Republican said.

McConnell has not recently commented on proposed OSHA standards, but he’s been emphatic that any aid package include liability protections to win Republican support. He has said the GOP bill would provide liability protections retroactive to December 2019 that would last through 2024.  

The Republican proposal is also expected to make changes to the so-called Paycheck Protection Program to make it accessible to more small businesses, provide direct payments to households and inject more federal cash into schools and health care providers.

[Mnuchin gives hints of PPP changes in next COVID-19 relief bill]

McConnell’s proposal

A draft summary of McConnell’s liability protection proposal obtained by CQ Roll Call outlines several provisions that attempt to shield businesses, schools and health care providers who follow public health guidelines from personal injury in coronavirus-related trial lawsuits.

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For schools, colleges, charities and businesses that plaintiffs accuse of causing coronavirus exposure, defendants could only be held liable if they failed to make “reasonable efforts” to follow public health guidelines. The summary document does not define reasonable efforts.

For licensed health care facilities and health care workers accused by plaintiffs of providing poor care or services related to the coronavirus, defendants would only be liable for “gross negligence and intentional misconduct.”

In all cases, the bill says plaintiffs would have to provide for a “clear-and-convincing-evidence burden of proof,” which the summary document does not define. The measure would also place a cap on damages plaintiffs can recover, but the summary does not specify what that cap would be.

To further discourage such lawsuits, the bill would provide for concurrent federal jurisdiction over all claims covered by the statute. That means defendants could try to move lawsuits filed in local courts to federal court, where proceedings would likely move much slower.

The liability protections would all sunset at the end of 2024 or earlier if the Health and Human Services Department rescinds its declaration under the Public Health Service Act providing liability immunity for medical countermeasures against COVID-19.

The GOP proposal would also provide employers protection from liability under federal labor and employment law for actions they take to comply with stay-at-home orders and other public health guidance, including any injuries arising from workplace coronavirus testing. This provision does not appear to sunset, based on the summary document.

The American Association for Justice, a group of trial lawyers that advocates policies to allow harmed individuals to seek justice in the courts, has said McConnell’s concern about a wave of COVID-19 litigation is unfounded based on complaints filed to date.

The association, citing a database maintained by the Hunton Andrews Kurth law firm, said that less than 5 percent of complaints filed nationally have been personal injury cases.

The majority of cases involve insurance issues such as businesses claiming they didn’t get coverage they paid for, civil rights claims from people challenging stay-at-home orders and other health guidance and prisoner petitions, while other complaints only tangentially relate to the pandemic, the association said in an analysis released earlier this week.

Senate Minority Leader Charles E. Schumer said McConnell is “wasting valuable time” writing a bill without Democratic input.

Speaking on a press call Friday with members of the American Federation of State, County and Municipal Employees union, Schumer didn’t seem pleased with the direction Republicans were taking.

“His caucus is in total disarray,” the New York Democrat said. “They have no plan to help workers, to help families.”

Paul M. Krawzak and David Lerman contributed to this report.