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McConnell’s Reopening Plan Would Have Workers Incur Risks with Little to No Legal Recourse

Senate Majority Leader Mitch McConnell (R-Ky.) is refusing to move forward with additional coronavirus-related legislation unless it legally protects businesses who re-open their doors.

On Tuesday, the Wall Street Journal reported the details of a private phone call among Senate Republicans. During the call, McConnell threatened to torpedo the so-called “stage four” relief efforts currently being considered by Congress in response to the novel Coronavirus (COVID-19) pandemic unless the legislation were to contain provisions to shield corporations from pandemic-related litigation.

By Tuesday evening, McConnell was proudly and publicly discussing his attempts to protect private companies from having to account for any missteps related to government attempts to force employees back to work too soon.

“We can’t pass another bill unless we have liability protections,” McConnell said during an appearance on Fox News. “That’s the only way we’re going to ultimately begin to get past this. We have to have businesses brave enough to open up again and employees brave enough to go back to work.”

“We have a red line on liability,” the Kentucky Republican added. “It won’t pass the Senate without it.”

Republicans and the nation’s capital class are pushing for restrictions to end and want workers back on the job to quickly jump-start the economy and to provide them with the services to which they are generally accustomed. “Astroturfed” protests bankrolled by GOP donors and activists sprung up in recent days to give the appearance of a working class ready to get back to work, yet over 80 percent of Americans according to a Quinnipiac poll were at the beginning of April supportive of a continued nationwide lockdown. (A more recent poll by PBS NewsHour put the number at 65%, still a majority.)

Buoying efforts to send many workers back to Coronavirus exposures (and concomitant illnesses and deaths) are restrictive mandates on unemployment in GOP-controlled states that will rip unemployment benefits from workers who refuse to return to to their trades for fear of contracting the deadly contagion. Such unemployment-related actions are currently queued up in both Texas and Iowa.

“This is a terrible policy,” tweeted Loyola Law Professor Sam Brunson. “This is going to further expose the poor to the risk of death and disease, while allowing the rich to stay safely ensconced in our homes.

And while efforts in Georgia and Texas to prematurely reopen have been roundly criticized by public health officials and experts, congressional Republicans led by McConnell are attempting to use the crisis to act on longstanding orders from big business interests to eviscerate tort liability.

“Before we start sending additional money down to states and localities, I want to make sure that we protect the people we’ve already sent assistance to, who are going to be set up for an avalanche of lawsuits if we don’t act,” McConnell told Fox News Radio on Monday. “The lawyers, trial lawyers, are sharpening their pencils to come after health care providers and businesses, arguing that somehow the decision they made with regard to reopening adversely affected the health of someone else.”

Broad immunities from liability already exist for the medical industry because of previous COVID-19 legislation; several states also have passed laws which immunize doctors from tort liability while treating the pandemic.

One big business owner who went on the record to defend their own treatment of their employees essentially echoed McConnell’s rhetoric in a statement to Courthouse News.

“We want immunity from masses who can’t manage their anxiety and opportunist lawyers, and not to mention unions who are taking advantage of the situation,” Scott Nash, CEO of supermarket chain MOM’s Organic Market told the outlet. “We are under a lot of stress.”

The National Association of Manufacturers released an “American Renewal Action Plan” on April 21 which called for “strong liability protections” against various lawsuits arising from COVID-19.

“Congress should limit lawsuits in state and federal courts claiming damages for COVID-19 exposure in the workplace to those based on claims that companies had actual knowledge that the person would be exposed to COVID-19 and acted with reckless indifference or conscious disregard as to whether the person would contract it, and require that such allegations be pled [sic] with particularity,” the document says — effectively overturning various workplace safety standards and already exacting liability rules.

But that appears to be exactly the point.

Under the banner of so-called “tort reform,” the GOP has led a decades-long campaign against private lawsuits. The movement has been extant since the 1970s; it was “spearheaded by insurance companies and large corporations,” according to legal information clearinghouse Justia, “the goal of which was to attack the civil justice system and change rules of law, not through case-by-case adjudication, but through public perceptions and legislation limiting personal injury lawsuits.”

The Republican Party’s efforts are therefore, in a sense, nothing new. And attorneys quickly caught onto the old, familiar wine being poured into a pandemic-themed bottle.

“Liability protections and tort reform are just like tax cuts and stopping immigration: It has been the Republican prescription for everything for more than a generation now,” said plaintiff’s attorney Max Kennerly told Roll Call. “This proposal from McConnell is no different from what he was proposing a year ago, 10 years ago or 20 years ago.”

“Sen. McConnell has been hostile to the civil justice system for as long as he’s been in the Senate,” University of California, Hastings Law Professor Shanin Specter told the outlet. “So he’s got a collateral agenda to try to undermine the civil justice system, and if he can do it, in the atmosphere of the COVID-19 crisis, he will.”

“Liability protections come at a cost, and the cost is to employers, customers and public at large, because if a business has no incentive to guard against these kinds of harms, safety becomes the more expensive and less competitive option,” Kennerly added. “Do we really want it so that a meat company that doesn’t take reasonable measures to stop the spread of Coronavirus will actually be rewarded?”

Public health experts insist that it’s far too soon to reopen the U.S. economy beyond essential businesses.

“We have too many unknowns to reopen,” Dina L.G. Borzekowski, EdD, research professor of behavioral and community health and interim director of The Global Health Initiative, University of Maryland told Healthline in a recent survey of various public health specialists. “We must rely on, respect, and be patient for good science. Despite hard-working public and private laboratories, the science won’t be ready by May 1.”

Each expert questioned gave essentially the same answer:  nothing can or should go back to normal anytime soon.

“If we fully open in the coming weeks, or June 1, I believe we will see an acceleration of cases and additional deaths,” said Rodney E. Rohde, PhD, professor in the College of Health Professions at Texas State University. “Yes, there are benefits to waiting. We obviously need to get back to work, but until we handle testing and testing personnel questions, we must be cautious.”

“This first wave…is just the beginning of what could easily be 16 to 18 months of substantial activity of this virus around the world, coming and going, wave after wave,” Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota said during a press conference earlier this month. “It surely is a virus that likely will have to infect at least 60 to 70 percent of the population before you’re going to see a major reduction in its transmission.”

 

[image via Chip Somodevilla/Getty Images]

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