Health and business concerns clash in debate over COVID-19 liability

This familiar legal fight is playing out against an unfamiliar backdrop of a growing public health crisis

Senate Majority Leader Mitch McConnell talks with reporters as he departs from the Senate floor on Monday. (Caroline Brehman/CQ Roll Call)
Senate Majority Leader Mitch McConnell talks with reporters as he departs from the Senate floor on Monday. (Caroline Brehman/CQ Roll Call)
Posted July 22, 2020 at 6:02am

While Congress jostles over whether businesses should get extra protections from lawsuits related to COVID-19 in the next pandemic relief bill, legal action across the country highlights the stakes for states struggling to reopen their economies.

McDonald’s employees in Chicago and California filed lawsuits in state court that claim the fast-food franchises weren’t doing enough to keep them safe as “essential” workers, with one plaintiff telling the media that the Oakland location was “risking our lives to sell the company’s burgers and fries.”

And Chiyomi Brent, who fulfills grocery orders at Amazon, says she took the retail giant to court in California after her complaints internally and with state regulators did not prompt a change in workplace conditions, such as not cleaning the “freezer suits” that are reused by up to 10 different employees a day.

“Without the ability to file a lawsuit, Amazon would be able to get away with this action, and more Americans will needlessly get sick or, even worse, die,” Brent said Monday on a conference call set up by opponents of giving businesses immunity from such lawsuits. “It is my hope that workers in every industry will be safer because of my lawsuit.”

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On the flip side, business advocates say such lawsuits appear to be an inevitable and costly risk of reopening, and in some cases they put them in the impossible position of defending their actions when the highly contagious virus spreads in places outside their control.

For example, the owner of that McDonald’s franchise in Oakland told the media in May that it was in full compliance with Centers for Disease Control and Prevention guidelines and state-level orders and also provided employees with paid leave and “nearly $20,000 worth of grocery gift cards to further aid them during this difficult time.”

Familiar fight

In many ways, this is a familiar legal fight now playing out against an unfamiliar backdrop of the worst public health crisis in more than a century, with nearly 4 million people infected in the United States, including at least 140,000 deaths.

Now it could become a major sticking point in the negotiations over economic relief from the pandemic. Senate Majority Leader Mitch McConnell on Tuesday said he would not bring such a bill to the floor without liability protections for companies, but House Democrats have decried such a forthcoming provision.

Consumer and employee advocates and many Democratic lawmakers say the threat of such lawsuits is an important way to make sure employers take steps to keep workers and the public safe, while business groups and Republican lawmakers contend the threat of legal action will curtail any economic recovery.

The tug of war between the two sides has played out over years and many lawsuits, but what will happen in the wake of the novel coronavirus is not certain.

Risk of reopening

Worker advocacy groups point to tracking numbers as proof that there isn’t a wave of such litigation ahead. There have been 251 consumer lawsuits and 325 labor and employment lawsuits related to COVID-19 since January, according to a database maintained by Hunton Andrews Kurth law firm.

But Torsten Kracht, a partner at that firm, said retailers and manufacturers have voiced concerns about the cost and distraction of lawsuits as they try to restart while already under financial strain from the pandemic.

“In some instances, they are just generally trying to look at the risk profile of reopening,” Kracht said. “In other cases, they’re looking at cases that have been filed and whether they appear to have any merit or not, and how can they avoid being named in those kinds of cases to avoid these distractions and expenses.”

Another concern is causation: If someone goes to 10 different places in a day, “it may be difficult to establish which one of those places you can track with the virus, or maybe you got it in between those places,” Kracht said.

McConnell says doctors and nurses, school districts, universities, nonprofits and small businesses will need protections against liability for COVID-19-related illnesses to reopen.

“The American people will not see their historic recovery gobbled up by trial lawyers who are itching to follow the pandemic with a second epidemic of frivolous lawsuits,” the Kentucky Republican said Tuesday on the Senate floor. The bill creates “a safe harbor for institutions that make good-faith efforts to follow the guidelines available to them.”

Some lawsuits could directly affect thousands of workers and indirectly affect many more. Walmart, the nation’s largest employer, faces a wrongful death lawsuit in state court related to a worker who died from the virus.

Amazon, the target of Brent’s lawsuit, is the country’s second-largest employer, while the largest teachers union in Florida, with more than 140,000 members, filed a lawsuit to stop a state plan to reopen schools for in-person classes later this year.

A draft summary of McConnell’s liability protection proposal, obtained by CQ Roll Call, would send personal injury lawsuits related to coronavirus exposure to the federal courts, which are often considered friendlier to defendants.

The proposal would also impose procedural rules making such lawsuits harder to pursue, including higher standards for how detailed a lawsuit must be when filed, how convincing the proof must be, and a cap on damages.

And businesses would only be liable if they did not make reasonable efforts to follow applicable public health guidelines and they intentionally ran things in a way that they could foresee would likely cause sickness.

All those changes would last through at least 2024.

Julia Duncan, senior director of government affairs at trial lawyer group the American Association for Justice, said McConnell and the U.S. Chamber of Commerce are using the pandemic to push toward their long-term goal of protecting businesses from accountability.

“If Congress wipes away this possibility, all businesses will know they can act unreasonably and not be held publicly accountable,” Duncan said. “This means that more businesses will cut corners on safety and more people will get sick. Lawsuits are helping to keep us safe. Immunity will lead to increased infection and death.”