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Mitch McConnell’s push to shield companies from COVID-19 lawsuits dismantled by NYT editorial board

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Senator Mitch McConnell of Kentucky speaking at the 2013 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Photo by Gage Skidmore.)

On Saturday, The New York Times editorial board excoriated the demand of Senate Majority Leader Mitch McConnell (R-KY) that any new coronavirus relief bill include liability protections for corporations that get their employees infected.

“The biggest obstacle, as [McConnell] sees it, is not a deadly disease but rapacious trial lawyers, capitalizing on the virus to chase ambulances and bankrupt American businesses,” wrote the board. “As Congress gears up for the next installment of its stimulus package, Mr. McConnell has drawn a line: No more money for anyone until businesses get immunity from liability during the pandemic. The demands being debated include making it harder to claim that a business is at fault for a worker’s or customer’s infection, protecting businesses that are making personal protective equipment like masks for the first time, and protecting employers against privacy lawsuits if they disclose a worker’s infection.”

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“The problem is that immunity doesn’t just shield the worst actors; it also punishes the best, by giving a competitive advantage to the businesses that decide to cut corners at the expense of worker and customer health and safety,” wrote the board.

“Consider what happened in Utah, which passed a bill immunizing businesses from pandemic-related litigation in most cases and issued only advisory guidelines,” wrote the board. “The next day, the Utah Press Herald reported that two businesses had told their employees to disregard the guidelines, and even ordered those who had tested positive for the coronavirus to report to work. At one of the businesses, nearly half of all employees tested positive … From nursing homes to Amazon warehouses to federal prisons, workers are getting sick because their bosses didn’t take necessary safety precautions.”

McConnell’s push doesn’t even make sense, the board continued, because, “As a matter of law, it’s already extremely difficult for workers or consumers to succeed with tort claims. In most states, as long as a business shows that it followed regulations or guidelines, or even just took common-sense precautions, it will usually prevail … So far, the predicted wave of lawsuits has not materialized. Instead we’re seeing suits like the one brought against Smithfield, which asks not for money damages but for the business to take the most basic safety precautions.”

Additionally, the board wrote, “tort law is the province of the states, which can help incentivize good behavior by allowing people to sue when they are harmed by a business’s negligence or wrongdoing. Any immunity provision passed by Congress would pre-empt these state laws, making it virtually impossible for them to protect their own citizens. Such a provision might even violate the Constitution, said David Vladeck, a law professor at Georgetown who testified before the Senate last Tuesday.”

“It’s no surprise that many businesses are confused about what they should do, and fearful of what might happen if they don’t do it,” wrote the board. “The answer is to give them good, clear and mandatory guidelines, not immunity from liability. Until those guidelines are in place, it’s premature to talk about granting even more immunity to businesses.”

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