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Prioritize Safety!

Published on June 25th, 2020

Paul Bland is executive director at Public Justice, a national public interest law firm that works to protect environmental sustainability efforts and challenge predatory corporate conduct and government abuses.  He recently wrote about tort reform measures being pushed by the nursing home industry and others.

“In response to COVID-19, nearly every state has put in place guidelines aimed at curbing the pandemic and protecting public health and safety. Many businesses have had to shut down or at least greatly slow down, and unemployment numbers continue to climb to rates not seen since the Great Depression.

Given that grim news, it’s natural that many people are focused on how to get people back to work and jumpstart an economic recovery. Some lawmakers, however, are proposing a dangerous plan that would link efforts to revive the economy to broad immunity for corporations, blocking them from lawsuits related to COVID-19. That proposal, led by Sen. Mitch McConnell (R-Ky.), would free corporations of any responsibility — even when a corporation’s unreasonable and dangerous actions hurt people.

That’s especially precarious for workers in jobs that are at a higher risk for contracting the virus, such as meat packing plants. Recent headlines have exposed such plants as among the most problematic workplaces during the current pandemic — as well as among the least responsive to CDC guidance aimed at protecting employee and public health.

Lawmakers should be wary of putting constituents who work at those plants and in other dangerous but essential industries at risk of losing their access to the justice system.

Passage of broad national immunity will not only result in more widespread sickness (and in some cases death), but it will do little to revive the economy. In fact, evidence points in exactly the opposite direction. Americans need first and foremost to feel safe before they feel comfortable going back to work or patronizing businesses. Few people will voluntarily re-enter America’s commercial life if they believe they are taking a major risk with their lives or jeopardizing the safety of someone who is vulnerable, including older loved ones and senior citizens.

Indeed, it would hardly be reassuring to workers, consumers or anyone else if corporations are immune to accountability even when they act unreasonably and expose people to COVID-19. If Congress grants that immunity, corporations have no incentive to operate safely and will never face responsibility — no matter the corners they cut or risks they impose. Such action is likely to slow down any recovery. Who would feel safe working at, or doing business with, a big corporation that can do whatever it wants without having to face any legal accountability?

Supporters of corporate immunity, such as former Sen. Judd Gregg, who advocated in this publication for shielding corporations no matter the impact on real people and real lives, like to imagine that America will face a wave of unjustified lawsuits against innocent businesses. Gregg knows full well, however, that even under current law, corporations can only be held liable in limited circumstances. Before a worker could hold their employer responsible for an injury, for example, the company would have had to have clearly acted in a way that no reasonable business would under the circumstances — and the worker would have to show that the injuries they suffered were caused by this breach. The court system has consistently demonstrated that it is well equipped to throw out weak cases well before they ever become a threat to businesses.

However, giving corporations immunity even if they operate unsafely will also certainly mean more people get sick and die. In addition to risking the lives of their own workers, corporations that don’t prioritize safety will also be jeopardizing the health and safety of workers’ families, neighbors and the entire community in which they operate.

“Loser-pays” proposals – hitting workers who challenge unsafe conditions with ruinous fees for corporate lawyers if they narrowly lose a case — would be the same as giving immunity, ensuring no one ever steps forward.

If corporations cut corners and a second wave of infections take place, the economic consequences will be far worse than if the country opens up in a safer way. It’s in everybody’s interest to get back to work in a smart way, where workers and consumers know that corporations have an incentive to operate safely.

The Occupational Safety and Health Administration (“OSHA”) has issued guidance for businesses on how to protect workers from COVID-19, but it has insisted that these are just suggestions, not regulations. So even though a few bad actors have already had significant COVID workplace outbreaks as a result of ignoring basic safety guidance, the government is taking no steps to actually protect people. That means workers will need to protect themselves, and the courts are the only way they can do that.

Keeping our courts open and available to workers is the only way to ensure that some corporations take seriously their responsibilities to protect their people.

In truth, the proposal to limit lawsuits will only please big corporate campaign donors, but would be costly to Americans’ health and our economy. Congress should prioritize the health and well-being of the American people and our economy — and oppose any effort to immunize unreasonable corporate conduct. If proposals like those being advocated by Gregg become law, America will be less safe, and our economic recovery will be slower.

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