Congress is currently considering legislation on a federal level that would limit employer liability for COVID-19 occupational disease claims. This would preempt state level legislation, including workers' compensation and civil laws, regarding such injury claims. This legislation has not yet passed to become law, and it seems unlikely that this would happen. However, what is clear is that the serious proposal indicates that COVID-19 is viewed as a serious threat to worker safety, so that employees should take action to pursue such claims if they do come down with the COVID-19 illness.
There were a few interesting points of contention.
One was the testimony of Kevin Smartt:
Kevin Smartt, CEO of Kwik Chek Convenience Stores, described efforts to protect employees and customers, including cleaning and closing one of his 47 stores after an employee tested positive for the virus. Smartt said he placed workers who had contact with the infected employee on 14-day quarantines.
Even applying best practices, Smartt said it would be “impossible” to keep all workers and customers from getting the virus. He said that immunity for a fixed period during the economic reopening could save businesses that might otherwise not be able to survive legal action.
Smartt received bipartisan praise and appreciation from committee members and other witnesses. But the question of whether broadly immunizing businesses from liability would be an incentive to protect or exploit workers never garnered a consensus.
Georgetown Law School Prof. David Vladeck said current law protects businesses and proving that a specific business caused COVID-19 is very difficult given the way the virus operates.
Limiting lawsuits to cases of “gross negligence” instead of “irresponsible conduct” would offer an easy exit for bad actors, Vladeck contended. “Irresponsible acts spread the virus as much as reckless acts,” he told the committee.
Having gross negligence as a standard is an interesting proposal, but there is no clear reason as to why it should be gross negligence rather than simple negligence. Clearly the former is more culpable, but there is no explanation given as to why negligence itself should not be blameworthy.
Another issue is the lack of clear regulation and guidance regarding what would exactly constitute best practices and safe conduct for employers to limit employee exposure:
Klobuchar pointed to the Trump administration’s decision to not publish a set of reopening guidelines developed by scientists at the U.S. Centers for Disease Control and Prevention. Absent regulatory leadership, Klobuchar argued, Americans need the court system.
Committee members of both parties agreed that uniform, specific regulatory guidelines offered the best way for businesses to indemnify themselves from injury claims. But Chairman Lindsey Graham, a South Carolina Republican, said that companies spending time and money to practice the right procedures should not have to face the additional expense of “getting sued.”
Another witness involved with employees in the food industry gave statistics about the breadth of the problem:
Marc Perrone, president of the United Food and Commercial Workers International Union (UFCW), represents more than 1 million workers, including hundreds of thousands working in meatpacking and processing. In Minnesota, the union represents workers in pork-processing operations in Worthington and Austin. A Worthington plant run by JBS has closed because of a COVID-19 outbreak that infected hundreds of employees.
The conditions under which it will reopen fit into the immunity debate as widespread testing of employees has become a sticking point.
Perrone told the committee that worldwide, 25,000 of his members have contracted COVID-19, and 162 have died. The U.S. Occupational Safety and Health Administration “has not issued orders specific to COVID-19,” he added. Perrone does not think a broad grant of immunity from lawsuits will make businesses more responsible. Instead, he said, it will “exacerbate” the problem of “outlaw businesses.”
Caught in the middle of the debate, ins
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