On May 15, the House passed the latest sweeping legislation to deal with the impacts of COVID-19, the Health and Economic Recovery Onnimbus Emergency Solutions Act, or HEROES Act. It would provide assistance to state and local governments; hazard pay for frontline workers; an extension of the $600-per-week boost in unemployment insurance established under the CARES Act until January 2021; $75 billion for coronavirus testing, contact tracing, and isolation measures; free coronavirus treatment for all Americans; protections for renters and homeowners from evictions and foreclosures; the second round of direct payments to Americans; assistance to the U.S. postal service; and $3.6 billion in grants to states planning for elections in the time of coronavirus. Senate Majority Leader Mitch McConnell said immediately that the legislation was dead on arrival to the Senate.
More than 70 days later, on Monday night, Senate Republicans released their response to the HEROES Act: the Health, Economic Assistance, Liability Protection, and Schools Act, or HEALS Act. It’s no secret that Democrats’ and Republicans’ approaches to legislation to meet the moment that we’re in are different––the HEALS Act slashes unemployment assistance, lets eviction protections expire, and guts safety and health protections for workers and consumers while providing funding for a new FBI headquarters, new assistance for big banks, and billions in military spending (for F-35 fighter jets, military vehicles, and Customs and Border Protection).
But with more than four million COVID cases, 145,000 deaths, tens of millions of unemployment claims, and states making decisions about reopening schools, there’s a piece of the legislation’s name that really stands out: liability protection.
So, what does it mean?
The corporate immunity proposal introduced in the Senate by Texas Senator John Cornyn as part of the HEALS package would make it nearly impossible for individuals to hold corporations accountable for cutting corners on safety precautions. It would bar nearly any lawsuit an individual might file related to their exposure to COVID-19, with a narrow exception for intentional misconduct or gross negligence, “defined at an extremely high standard that plaintiffs could almost never meet.”
Justice in Aging, a national non-profit legal advocacy organization that fights senior poverty through the law, recently said of the proposal:
These provisions, which would give immunity to nursing facilities, excuse negligent care, and allow harm to residents to go unaddressed, would reward bad actors and remove incentives for facilities to comply with laws and regulations, eliminate one of the last remaining oversight protections for residents, place workers and communities at risk, and perpetuate racial disparities in health care.
Here is an explainer from the Progressive Caucus Action Fund analyzing the impacts of the proposal:
The immunity granted by this bill would last for 4 years and extend retroactively back to December 2019. The bill would:
Immunize businesses that gamble with workers’ and consumers’ lives. It would completely bar workers and consumers from bringing lawsuits under strong state laws across the country that protect worker safety and public health. Instead, more protective state laws would be replaced by an exclusive federal cause of action, which would make it nearly impossible for workers or the public to hold bad actors accountable.
- In general, workers and consumers would not be able to sue corporations that negligently expose them to COVID-19, or sue under other state law.
- People could only hold corporations accountable for COVID-19 exposure if they could show “willful misconduct” and “gross negligence.”
- “Gross negligence” is already a narrow, heightened standard that is nearly impossible for workers to meet— and the GOP bill further narrows it to a standard equivalent to reckless homicide.
- Under this standard, most cases will be shut out of court before plaintiffs even have a chance to get evidence of corporate misconduct.
- Plaintiffs must meet a heightened standard of proof: “clear and convincing evidence.” This is a much tougher standard than the preponderance of the evidence standard applied in most civil cases. Workers will almost never be able to meet this high bar and would be shut out of court before they could get evidence of misconduct.
Create a race to the bottom on worker safety. The bill would immunize corporations from lawsuits if they make “reasonable efforts to comply,” not actually comply, with any “applicable government standards and guidance.” But if different government bodies issue guidance, corporations can pick and choose which standards to follow.
- In Georgia, Governor Brian Kemp is already banning cities from issuing mask mandates. Under the bill, if the federal government issued a strong worker safety standard but Georgia issued a weak one, a Georgia company could choose to follow the less protective guidance — and would be free from lawsuits.
Shield companies that do virtually nothing to protect workers. The guidelines issued by the Trump Administration are so broad and weak that they do not create meaningful worker safety standards. Corporations could say they complied with vague guidelines — and are immune from lawsuits — without making any changes at all to keep workers safe.
Create new COVID-19 hotspots. Employers that are flouting worker safety laws are creating local COVID-19 hotspots. For example, nearly 1 in 10 meatpacking plant workers has been infected and a staggering 40% of COVID-19 deaths are linked to nursing homes — many of which failed to take reasonable steps to keep workers safe.
Put Black and Brown lives at risk. Black and Latinx people are more than twice as likely as white people to be infected by COVID-19, in part because employers are putting workers of color at risk to boost their bottom line. Corporate immunity will only make that worse, as workers of color are less likely to be able to work from home and because Black, Indigenous, and Latinx workers are overrepresented in high-risk industries like food service.
Gut employment and civil rights law. It would strip workers of the power to enforce a wide range of labor and employment protections, including anti-discrimination laws, whenever the alleged discrimination has to do with responding to COVID-19. This broad language could effectively immunize corporations from federal investigations into a broad range of misconduct, like allegations that a company denied reasonable accommodations to a disabled worker or student.
Nearly two-thirds of voters — including 72% of Democrats, 64% of Independents, and 56% of Republicans — oppose corporate immunity.
What happens now depends on the fight in the Senate and the conference between the House and the Senate to come up with a compromise. But be sure that corporate liability will be at the center of the fight on Capitol Hill and the race to respond to the pandemic.