Senate panel debates employer immunity from COVID-19 lawsuits

WASHINGTON – With some members and witnesses speaking from their homes and others sitting at least 6 feet apart in a U.S. Capitol hearing room, the Senate Judiciary Committee on Tuesday discussed whether Congress must shield employers from COVID-19 lawsuits as the country reopens.

The distance among participants offered a physical illustration for how far the nation must come to return to business as usual. The talk presaged a potentially contentious debate in the struggle to heal America's battered economy.

Senate Majority Leader Mitch McConnell, R-Ky., who is not a committee member, prompted the hearing with calls for broad immunity that would absolve companies of liability for charges that their actions contributed to COVID-19 deaths and injuries. McConnell said a tidal wave of personal-injury lawsuits made the protection necessary.

Judiciary Committee member Richard Durbin, D-Ill., said of roughly 1,000 COVID-related lawsuits, just 27 were for personal injuries and nine were for medical malpractice.

Nevertheless, Republicans on the committee favored immunity at least for a limited time. Sen. John Cornyn of Texas called it required to relieve a "stressed" economy.

Committee Democrats, including Sen. Amy Klobuchar of Minnesota, countered that immunity, combined with the federal government's failure to establish enforceable, science-based requirements for businesses to reopen, left workers and consumers unprotected.

As an example, 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."

Witnesses also differed on what constituted the correct approach.

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.

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, institutions such as colleges and universities are begging for definitive rules and guidance. Leroy Tyner, general counsel for Texas Christian University, spoke on behalf of the American Council of Education.

Higher education is an economic driver that has taken an enormous hit, Tyner told the committee. Now the question is how to move forward. "If and when we reopen," Tyner said of America's campuses, "the virus spread is probable and maybe inevitable."

Jim Spencer • 202-662-7432