Why Congress Ducked This Covid Legal Fight (for Now)

(Bloomberg) -- The leader of the U.S. Senate, Republican Mitch McConnell, has warned that a forthcoming wave of litigation over Covid-19 will amount to a “second pandemic.” That’s the basis for a continuing effort in Congress to shield companies from lawsuits filed by workers and consumers who get sick. Though a liability shield ended up being dropped from the economic stimulus measure passed in the final days of 2020, the issue is not going away, and some states have moved to provide their own versions of legal immunity for businesses.

1. How many Covid-related lawsuits have been filed?

A total of 1,348 lawsuits related to Covid-19 claims had been filed in the U.S. as of Jan. 5, according to Fisher Phillips LLC, a law firm tracking the litigation. Relatively few have been filed by workers who blame their employers after contracting the virus, according to several lawyers who have been following the field. Melissa Camire at Fisher Phillips, said that the most common kinds are cases filed by workers who said they needed, but were denied, time off because they contracted Covid-19 or had to take care of a sick person. The next most common categories were suits in which employment discrimination claims were tied to the pandemic, including claims by parents saying they were fired for taking care of their children, and whistle-blower cases.

2. Who’s been sued?

Most Covid exposure suits have been against companies whose workplaces are densely staffed, such as meatpackers and food processors, according to John Beisner, a partner at Skadden Arps Slate Meagher & Flom LLP in Washington, D.C. Janie Schulman, an attorney at Morrison & Foerster in Los Angeles, said smaller companies and those in the health care industry are common targets. The Fisher Phillips data support her conclusion: Companies with fewer than 50 employees are defendants in 461 Covid-related lawsuits, or more than one-third of the total. Suits have also been filed against companies over conditions in warehouses and product distribution centers, including one against Amazon.com Inc.

3. What are those suits about?

Juno Turner, litigation director at Towards Justice, a Denver-based workers’ rights organization who filed the suit against Amazon in Brooklyn, said that many of them have been brought by low-wage, frontline or essential workers, who are disproportionately people of color. Some, like the Amazon suit, are seeking court orders requiring safe conditions. Others seek damages for employers’ egregious conduct on behalf of workers who’ve fallen ill or died, she said.

4. What can people who think they got Covid on the job do?

The vast majority of workers arguing they contracted Covid due to unsafe workplaces are required to pursue their claims through worker compensation programs, an administrative process that generally makes it impossible to sue employers directly over workplace injuries. Labor lawyers argue the programs don’t have the teeth required to change practices at dangerous workplaces.

5. How about workers worried about infection risks?

Some cases are being filed as “public nuisance” suits in an attempt to avoid the normal channels for such complaints. The case against Amazon accused the company of contributing to the spread of Covid-19 by telling plant workers to emphasize speed over distancing, hand-washing and sanitizing work spaces. A federal judge in Brooklyn dismissed the case in November, saying workers should bring their concerns to the federal Occupational Safety and Health Administration instead. Two of the legal non-profits that brought the Amazon lawsuit, Towards Justice and Public Justice, are separately suing OSHA in a federal court in Pennsylvania, saying the agency has arbitrarily and capriciously failed to address “imminent dangers” to workers at a meatpacking plant in the state.

6. What are states doing?

While Congress has remained gridlocked on any federal measure, at least 10 states have created their own legal shields for businesses and individuals, says Fisher Phillips lawyer Chantell C. Foley. They include Georgia, North Carolina, Utah and Wyoming. Georgia’s law shifts the burden of proof so that instead of a company first being required to show how it complied with state and federal health guidelines, plaintiffs must prove it didn’t. Workers must show their employer “willfully and wantonly failed to follow the guidelines,” Foley says. “That’s a pretty high burden.” California in December put in place a new rule requiring employers to implement coronavirus safety measures and setting standards for virus testing, notifying workers of infections, and paid medical leave.

7. What would a federal liability shield do?

As outlined by Senate Republicans in a proposed stimulus measure that failed to win Democratic support, lawsuits couldn’t be brought under common law or medical malpractice statutes, only through a specially designed federal cause of action. Defendants could be found liable only if they didn’t make reasonable efforts to comply with relevant public health guidelines and were either grossly negligent or engaged in willful misconduct. Thresholds for acceptable evidence would be stricter. Compensatory damages would be limited to the plaintiff’s economic losses; punitive damages, awarded only if the defendant’s willful misconduct caused the injury, could not exceed compensatory damages. An employer couldn’t be held liable if it relied on, and generally followed, relevant health and safety standards. The shield would apply to virus exposure on or after Dec. 1, 2019, and until at least Oct. 1, 2024.

8. What do opponents say?

Several Democrats, including House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer, say that the liability shields would place workers in dangerous conditions without giving them legal recourse to recover damages or demand change. They also object to the length of the proposed shield. Labor groups and workers’ rights organizations say the main effect of a shield would be to encourage employers to not take the required safety precautions. Turner said Republicans were “using an exaggerated concern about purportedly frivolous litigation to justify blanket immunity for corporations that break the rules.”

9. Is the idea dead?

No. A bipartisan group of senators has vowed to continue working in 2021 on a deal that would pair a liability shield with financial aid to state and local governments, a Democratic priority. That group had been working on a measure that would establish a nationwide gross negligence standard for COVID-19 exposure, medical malpractice and workplace testing claims. Its protections would apply to claims arising from injuries that occurred from December 2019 through the later of one year after enactment or the end of the coronavirus public health emergency.

The Reference Shelf

• The Fisher Phillips tracker for coronavirus-related employment litigation.
• OSHA’s resource guide on Covid-19.
• Articles collected by the Institute for Legal Reform, an arm of the U.S. Chamber of Commerce.
• The “Towards Justice” blog follows cases brought on behalf of workers, including many related to the coronavirus.
• Legal analysis of a Republican bill on liability protection during the pandemic.

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