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Liability Shield Is a Stumbling Block as Lawmakers Debate Relief

WASHINGTON — Calls to protect corporations and schools from legal blame if workers fall ill from Covid-19 contracted on the job have incited a growing backlash as Congress and the White House negotiate over liability protections in economic relief legislation.

Businesses, hospitals, schools and the trade groups that represent them have pushed for any relief package to include protections from Covid-related lawsuits. But so far, there has been little sign of a surge in litigation as the economy reopens, and prominent voices have opposed such a measure, arguing that liability shields are unfair to workers and that businesses must take responsibility to keep them safe.

The issue has spilled into the world of sports. On Wednesday, College Athlete Unity, an organization that represents thousands of athletes at universities, wrote a letter to the N.C.A.A. and the Big Ten Conference urging them to revise plans for resuming fall sports. Among the proposals was to ban the use of Covid-19 waivers.

The players’ associations for the N.F.L., N.B.A., N.H.L., Major League Baseball and Major League Soccer have made a similar plea. In a letter to top Republican and Democratic lawmakers last Friday, they said that inserting liability protections in the legislation would be wrong.

“There is still much that is unknown about this disease, how it spreads, and the long term consequences of exposure,” they wrote, arguing it was unclear how such legislation would affect safety agreements that have been made between employers and employees. “It makes little sense during these uncertain times to both ask employees to return to work and, at the same time, accept all the risk for doing so.”

Some businesses — including salons, amusement parks, gyms and even President Trump’s campaign rallies — have required those who come in their doors to promise not to sue if they contract the virus. But a Republican proposal would offer a much bigger shield: It would provide five years of legal protection for businesses, hospitals, schools and nonprofits that make “reasonable efforts” to comply with government standards to protect their workers and customers from coronavirus-related lawsuits.

Neil Bradley, executive vice president and chief policy officer of the U.S. Chamber of Commerce, said lawsuits have already been filed, and the number will grow as the economy continues to reopen.

“The right thing to do is provide an incentive for employers and universities to make sure they are adopting the right public health measures and give them the confidence that, having done so, they are not going to be dragged into court and second-guessed years from now,” he said.

The Republican proposal would funnel all coronavirus-related work claims into the federal courts, where plaintiffs would have the right to bring personal injury and medical liability suits until 2024, or the coronavirus is no longer a public health emergency, whichever comes first.

But those suits would face a high bar. Plaintiffs would need to prove that their illness resulted from gross negligence or willful misconduct on the part of the employer, not just carelessness or a lack of resources, like protective equipment. It would also limit lawsuits relating to coronavirus testing and personal protective equipment, if that equipment meets the standards of the Food and Drug Administration.

Damages would be capped, and there is a provision that would make some employees think twice about suing: Those who bring claims without merit could be subject to punitive damages and civil penalties of up to $50,000.

Many unions and workers’ rights advocates have objected to the proposal, saying that it would result in negligent behavior on the part of businesses and schools and lead to more coronavirus cases and more deaths.

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Credit…Erin Schaff/The New York Times

The issue remains a contentious one in Washington, even as Senator Mitch McConnell, the majority leader and a Republican of Kentucky, insists that he will not allow any legislation to pass without the protections he has outlined.

“This is not just liability protection for businesses — they’re included along with everyone else dealing with this brand-new disease,” Mr. McConnell told CNBC late last month. “Unless you’re grossly negligent or engage in intentional misbehavior, you’ll be covered. And it will be in a bill that passes the Senate.”

The White House has been noncommittal, however. President Trump has said he is focused on eviction protections and unemployment benefits. And in a briefing on July 31, the White House press secretary, Kayleigh McEnany, said a liability protection provision was Mr. McConnell’s priority and reiterated Mr. Trump’s focus on unemployment.

However, an aide to Mr. McConnell said on Wednesday that the White House had indicated that it also viewed liability protection as a “red line” that must be part of any agreement.

Congressional Democrats have argued that the administration should focus instead on strengthening workplace protections through the Occupational Safety and Health Administration, and it remains unclear whether they could be enticed to accept some version of a liability waiver.

House Speaker Nancy Pelosi said last month that a liability shield could force workers to choose between their health and their financial well-being.

“If you get sick, you have no recourse because we’ve given the employer protection,” Ms. Pelosi, Democrat of California, said on “Face the Nation” on July 26. “And if you don’t go to work because you’re afraid of being sick and you have that job opportunity you don’t get unemployment insurance. This is so unfair.”

Polls have shown conflicting results on the public’s embrace of such a shield. A survey for the American Association for Justice, a group representing plaintiffs’ lawyers, showed nearly two-thirds of the public opposed such protections, while a U.S. Chamber of Commerce-funded poll found that 61 percent supported congressional protections from coronavirus-related lawsuits.

Julia Duncan, the senior director of government affairs at the American Association for Justice, said liability protections would take away an important tool for some of the country’s lowest-paid workers, who are disproportionately people of color, to secure more protections from big employers such as Amazon, Tyson Foods and McDonald’s.

“Bringing a lawsuit is the only leverage they have to say, ‘I would like to be treated safer, I would like to be provided protective equipment, I would like to be provided time to wash my hands,’” Ms. Duncan said. “And if these lawsuits go away, companies like Amazon and Tyson are going to be able to do anything and not be held to account.”

Other critics of the proposal say it could infringe on the rights of states, which typically regulate these kinds of legal protections. Many states, including Kentucky, Alaska and Missouri, have already expanded legal protections for businesses or offered expanded workers’ compensation to essential workers who contract coronavirus at work.

“Whatever happened to conservatives’ belief in states’ rights?” Amy Dru Stanley, a history professor at the University of Chicago, wrote in an op-ed in The Washington Post.

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Credit…Stefani Reynolds for The New York Times

Opponents of the provision, including the American Association of Justice, also argue that the United States has not yet seen a profusion of coronavirus-related lawsuits, because the requirements for bringing such a suit are already high. Companies that act reasonably are protected from such lawsuits, and plaintiffs have to prove that they contracted the coronavirus at the place of business, not somewhere else, they say.

“I think the purpose of this bill, to inoculate employers from this pandemic of litigation, sounds like a solution in search of a problem,” said Paul Matiasic, a lawyer who is representing a widow, whose husband worked at a Safeway distribution center and died after contracting the virus, in a case against the grocery chain. “I think trial lawyers have been very discerning in terms of what cases they’ve brought.”

A widely cited tally kept by the law firm Hunton Andrews Kurth shows that through Aug. 3 there have been nearly 4,000 legal complaints related to Covid-19, including disputes over business interruption insurance and rent delinquencies. So far, just 75 of those have been related specifically to exposure to Covid-19 at work or wrongful death. However, that number fails to capture workers’ compensation insurance claims that employees are filing when they get sick, according to Torsten Kracht, a partner at the firm.

Mr. Bradley, the Chamber of Commerce vice president, said some trial lawyers had already started advertising about coronavirus-related lawsuits. “You’re not advertising to attract clients to sue someone unless you think there’s an opportunity to sue,” he said.

Ms. Duncan, of the trial lawyers group, said the protections in the Republican proposal — although confined to coronavirus cases — would be a victory for businesses seeking to take liability cases away from the states. “If they could get a sweeping corporate federal immunity language enacted, albeit using this specific crisis to do it, they will all of a sudden achieve this thing they wanted for 30 years,” she said.

The fight over liability protection follows battle lines drawn decades ago between the business associations and the Republican Party on one side, and trial lawyers, unions and Democrats on the other. But this time it has drawn schools and universities into the mix.

In early July, the School Superintendents Association, the National School Boards Association and the Association of Educational Service Agencies sent a letter to Congress arguing for the liability protections.

“Any such litigation would disrupt the school district’s budget, a budget already likely to have been squeezed in response to the pandemic and related state and local funding cuts,” the letter said.

Luke Broadwater and Emily Cochrane contributed reporting.

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Coronavirus Aid: Millions Can See Its End, and They’re Scared

For millions of Americans left out of work by the coronavirus pandemic, government assistance has been a lifeline preventing a plunge into poverty, hunger and financial ruin.

This summer, that lifeline could snap.

The $1,200 checks sent to most households are long gone, at least for those who needed them most, with little imminent prospect for a second round. The lending program that helped millions of small businesses keep workers on the payroll will wind down if Congress does not extend it. Eviction moratoriums that are keeping people in their homes are expiring in many cities.

And the $600 per week in extra unemployment benefits that have allowed tens of millions of laid-off workers to pay rent and buy groceries will expire at the end of July.

The latest sign of the economic strain and the government’s role in easing it came Thursday when the Labor Department reported that millions more Americans applied for unemployment benefits last week. More than 40 million have filed for benefits since the crisis began, and some 30 million are receiving them.

The multitrillion-dollar patchwork of federal and state programs hasn’t kept bills from piling up or prevented long lines at food banks. But it has mitigated the damage. Now the expiration of those programs represents a cliff they are hurtling toward, for individuals and for the economy.

“The CARES Act was massive, but it was a very short-term offset to what is likely to be a long-term problem,” said Aneta Markowska, chief financial economist for the investment bank Jefferies, referring to the legislative centerpiece of the federal rescue. “This economy is clearly going to need more support.”

Even the possibility that the programs will be allowed to expire could have economic consequences, Ms. Markowska said, as consumers and businesses gird for the loss of federal assistance.

President Trump and other Republicans have played down the need for more spending, saying the solution is for states to reopen businesses and allow companies to bring people back to work. So despite pleas from economists across the political spectrum — including Jerome H. Powell, the Federal Reserve chair — any federal action is likely to be limited.

The House voted overwhelmingly Thursday to give businesses more time to use money borrowed under the Paycheck Protection Program, which offers forgivable loans to small businesses that retain or rehire their workers. The bill’s fate in the Senate is uncertain, but a deal seems likely.

A bipartisan group of lawmakers has separately proposed expanding a tax credit meant to subsidize wages, and the expanded unemployment benefits program may be extended. But Mitch McConnell, the Senate majority leader, has said that any additional aid package must be far narrower than previous packages.

The delivery of aid has been far from seamless. Many applicants waited weeks or months for payments. But the assistance has had an impact on millions of families.

“I have people regularly who are calling me just crying because they’ve gotten their payments and they can actually pay rent and pay back some of the things that they were defaulting on,” said Michele Evermore, a senior policy analyst at the National Employment Law Project.

When Nakitta Long was laid off on March 30, her first thought was the $900 rent payment due two days later. She was barely getting by on $507 a week as a temporary employee at a North Carolina automotive plant. Now she would be receiving just $223 per week in unemployment benefits — if she could get through to apply, which took weeks.

Federal assistance provided a bridge. In April she got a $2,200 stimulus payment — $1,200 for her and $500 for each of her two minor children — which covered rent and her car payment. Then she started collecting the $600 per week in additional unemployment benefits, which means she is earning more than she was at work.

“I don’t know where I would be,” Ms. Long said. “If I wasn’t getting the unemployment that I’m getting, and then the $600 boost and the stimulus, we would have been homeless.”

Ms. Long, 44, is figuring out what to do when the help runs out. She is scared to return to work with the virus still spreading, and unsure how she will do so if schools and day care centers remain closed. Most available jobs pay less than $15 an hour, which won’t cover her bills.

“I’ll have to take whatever’s available, to be honest with you,” she said. “I don’t think I’ll have time to weigh it. Rent’s going to have to be paid. Lights are going to have to be paid.”

The Democratic-led House passed a $3 trillion package this month that would extend the extra jobless benefits, send another round of $1,200 checks to households and provide aid to state and local governments, among other provisions. The measure stands no chance of becoming law as written.

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Credit…Anna Moneymaker/The New York Times

“I think about a month from now, we’ll take a look at how things are going and be able to make a more intelligent decision than a grab-bag of $3 trillion,” Mr. McConnell, the Senate leader, said Thursday at an event in Kentucky.

To some Republican lawmakers, extra unemployment benefits and other assistance made sense when businesses were shut down and the government was discouraging people from leaving home. But as the economy reopens, they say, the benefits could impede the recovery by providing an incentive not to return to work.

Many economists feel those fears are overblown. Generous benefits might be a deterrent to work in normal times, they argue, but these are hardly normal times. Even the most optimistic forecasters expect the unemployment rate to be well above 10 percent when the extra benefits expire, meaning there will be far more jobless workers than available jobs.

“The idea that — at an unemployment rate drastically higher than at the worst part of the great recession — we’re going to pull back support is just unbelievable,” said Jay Shambaugh, director of the Hamilton Project, an economic policy arm of the Brookings Institution.

Research routinely finds that unemployment insurance is one of the most effective parts of the safety net, both in cushioning the effects of job loss on families and in lifting the economy. In economists’ parlance, the program is “well targeted” — it goes to people who need the money and who will spend it. Various studies have found that in the last recession, the system helped prevent 1.4 million foreclosures, saved two million jobs and kept five million people out of poverty.

The impact could be greater in this crisis because the program is reaching more people and giving them more money. The government paid $48 billion in benefits in April and has reached $86 billion in May, according to the Treasury Department.

Ms. Markowska, of Jefferies, expects government data on Friday to show that personal income actually increased in April thanks to the unemployment benefits, stimulus payments and other programs. That money has flowed through the economy in rent payments, grocery store trips and other spending — not only helping the recipients but also preventing a steeper downturn.

  • Frequently Asked Questions and Advice

    Updated May 28, 2020

    • What’s the risk of catching coronavirus from a surface?

      Touching contaminated objects and then infecting ourselves with the germs is not typically how the virus spreads. But it can happen. A number of studies of flu, rhinovirus, coronavirus and other microbes have shown that respiratory illnesses, including the new coronavirus, can spread by touching contaminated surfaces, particularly in places like day care centers, offices and hospitals. But a long chain of events has to happen for the disease to spread that way. The best way to protect yourself from coronavirus — whether it’s surface transmission or close human contact — is still social distancing, washing your hands, not touching your face and wearing masks.

    • What are the symptoms of coronavirus?

      Common symptoms include fever, a dry cough, fatigue and difficulty breathing or shortness of breath. Some of these symptoms overlap with those of the flu, making detection difficult, but runny noses and stuffy sinuses are less common. The C.D.C. has also added chills, muscle pain, sore throat, headache and a new loss of the sense of taste or smell as symptoms to look out for. Most people fall ill five to seven days after exposure, but symptoms may appear in as few as two days or as many as 14 days.

    • How can I protect myself while flying?

      If air travel is unavoidable, there are some steps you can take to protect yourself. Most important: Wash your hands often, and stop touching your face. If possible, choose a window seat. A study from Emory University found that during flu season, the safest place to sit on a plane is by a window, as people sitting in window seats had less contact with potentially sick people. Disinfect hard surfaces. When you get to your seat and your hands are clean, use disinfecting wipes to clean the hard surfaces at your seat like the head and arm rest, the seatbelt buckle, the remote, screen, seat back pocket and the tray table. If the seat is hard and nonporous or leather or pleather, you can wipe that down, too. (Using wipes on upholstered seats could lead to a wet seat and spreading of germs rather than killing them.)

    • How many people have lost their jobs due to coronavirus in the U.S.?

      More than 40 million people — the equivalent of 1 in 4 U.S. workers — have filed for unemployment benefits since the pandemic took hold. One in five who were working in February reported losing a job or being furloughed in March or the beginning of April, data from a Federal Reserve survey released on May 14 showed, and that pain was highly concentrated among low earners. Fully 39 percent of former workers living in a household earning $40,000 or less lost work, compared with 13 percent in those making more than $100,000, a Fed official said.

    • Is ‘Covid toe’ a symptom of the disease?

      There is an uptick in people reporting symptoms of chilblains, which are painful red or purple lesions that typically appear in the winter on fingers or toes. The lesions are emerging as yet another symptom of infection with the new coronavirus. Chilblains are caused by inflammation in small blood vessels in reaction to cold or damp conditions, but they are usually common in the coldest winter months. Federal health officials do not include toe lesions in the list of coronavirus symptoms, but some dermatologists are pushing for a change, saying so-called Covid toe should be sufficient grounds for testing.

    • Should I wear a mask?

      The C.D.C. has recommended that all Americans wear cloth masks if they go out in public. This is a shift in federal guidance reflecting new concerns that the coronavirus is being spread by infected people who have no symptoms. Until now, the C.D.C., like the W.H.O., has advised that ordinary people don’t need to wear masks unless they are sick and coughing. Part of the reason was to preserve medical-grade masks for health care workers who desperately need them at a time when they are in continuously short supply. Masks don’t replace hand washing and social distancing.

    • What should I do if I feel sick?

      If you’ve been exposed to the coronavirus or think you have, and have a fever or symptoms like a cough or difficulty breathing, call a doctor. They should give you advice on whether you should be tested, how to get tested, and how to seek medical treatment without potentially infecting or exposing others.

    • How can I help?

      Charity Navigator, which evaluates charities using a numbers-based system, has a running list of nonprofits working in communities affected by the outbreak. You can give blood through the American Red Cross, and World Central Kitchen has stepped in to distribute meals in major cities.