July 31st 2020

By Emily Singer

American Independent Foundation

Senate Majority Leader Mitch McConnell and his close ally, Sen. John Cornyn (R-TX), introduced legislation on Monday that would broadly shield employers from liability if workers contract the coronavirus on the job, making it near impossible for those workers to sue, employment law experts say.

Such a move would also disproportionately impact workers of color — who, according to data from the Bureau of Labor Statistics, are more likely to be in essential jobs that require them to work in-person rather than remotely.

“Black, Latinx, and workers of color will be most directly impacted by the corporate immunity bill,” Hugh Baran, a staff attorney at the National Employment Law Project who focuses on workers in low-wage industries, said in an interview.

ABC News reported that Black people make up 13% of the United States population, but account for 15% of essential workers in the country. Similarly, though Latinx people make up 18% of the population, they make up 21% of essential workers.

Black and Latinx communities have already been hit harder by the COVID-19 pandemic, with individuals in those communities dying in greater numbers from the virus than their white counterparts, according to data from the Centers for Disease Control and Prevention.

According to the Economic Policy Institute, both communities face higher death rates thanks to deep-rooted racial inequalities that often leave them without access to proper health care.

Legal experts say the liability protections — which McConnell says must be included in any coronavirus relief bill in order for him to bring it up for a vote — would hurt these communities even further, creating a stricter standard of proof to file civil lawsuits if they get sick or die on the job from the virus.

According to the text of the bill, workers may only sue an “individual or entity” who is “not making reasonable efforts … to comply with the applicable government standards and guidance,” who “engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus,” and prove that “the actual exposure to coronavirus caused … personal injury.”

Baran said that standard is so strict almost no one could meet it.

“Gross negligence is already as a general manner an extremely difficult thing to prove,” Baran said. ” You have to prove intent — that you wanted your workers to get hurt or sick. This [bill] actually raises the bar so high that no worker or consumer will ever be able to” meet the standard.

Baran added that the bill also makes it easy for employers and businesses to say they made an effort to prevent against the coronavirus.

“Under McConnell’s bill, employers are immune from liability if they can show reasonable efforts to comply with any applicable government standards or guidance. But the problem is that the federal guidance, the OSHA guidance or CDC guidance, doesn’t require them to do anything,” Baran said.

He added that guidance from those entities is merely recommendations that don’t require employers to do anything, noting that they include caveats like “if feasible” or “if possible.”

Take, for example, the Centers for Disease Control and Prevention guidance for employers on reopening office buildings. One of the guidelines says employers should, “Consider posting signs in parking areas and entrances that ask guests and visitors to wear cloth face coverings if possible, to not enter the building if they are sick, and to stay 6 feet away from employees, if possible.”

Baran said those kind of caveats make it so that “employers are able to escape any liability or accountability for getting sick with COVID-19 so long as they can show reasonable efforts — which means literally doing nothing at all.”

It’s unclear how the fight over liability will impact the coronavirus relief package.

Democratic lawmakers are against such sweeping immunity, arguing that workers need more protections, rather than businesses.

McConnell has claimed that “there’s no chance of the country getting back to normal without” a liability shield.

However the data doesn’t back that up, as very few lawsuits related to the coronavirus have been filed by plaintiffs  suing who contracted it, according to data from Hunton Andrew Kurth, a law firm tracking coronavirus-related lawsuits.

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