Trials & Litigation

McConnell says COVID-19 aid bill must include liability shield for businesses and hospitals

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U.S. Senate Majority Leader Mitch McConnell said Tuesday that a federal aid bill for state and local governments should make the money contingent on states providing liability protection to businesses and hospitals providing services amid the COVID-19 pandemic.

“Let me make it perfectly clear: The Senate is not interested in passing a bill that does not have liability protection,” McConnell said in an interview on the Fox News show Your World with Neil Cavuto. “We have a red line on liability.”

Fox News and the Hill have coverage.

“We need to provide protection, litigation protection, for those who have been on the front lines, hospitals, doctors, nurses,” McConnell said.

“And imagine you are a businessman thinking about reopening, and you’ve heard that trial lawyers all over the country are sharpening their pencils getting ready to sue you claiming that you didn’t engage in proper distancing or other issues related to health and safety. Look, we can’t pass another bill unless we have liability protection.”

Host Neil Cavuto asked McConnell whether providing liability protection could make companies feel legally bulletproof, leading them to skimp on safety steps such as providing face masks.

McConnell replied that any legislation would have to be carefully crafted by states, which would get the federal money on condition that they pass liability curbs.

Lobbyists and business executives have been pressing for Congress to enact liability protection, the New York Times reports. The Trump administration is also considering whether curbs on liability could be created by regulation or executive order.

The Equal Employment Opportunity Commission has already told employers that they can require COVID-19 tests for employees returning to the workplace without violating the Americans with Disabilities Act. The tests must be accurate and reliable, and they must be job-related and consistent with business necessity.

The U.S. Chamber of Commerce has made several suggestions, including safe harbor from privacy laws for employers who inquire about health status, safe harbor from age and disability bias laws if companies follow guidelines regarding at-risk employees, and safe harbor from simple negligence claims for COVID-19 exposure if businesses follow government health guidance.

Manufacturers have suggested raising the legal bar for plaintiffs claiming that a business failed to protect them from COVID-19, giving additional protections to businesses making new items to address the novel coronavirus crisis, and shielding businesses from privacy suits if they reveal a worker’s COVID-19 status for safety reasons.

Although McConnell indicated that he wanted states to act on liability curbs, Congress could in theory act at the national level. According to John Goldberg a professor at Harvard Law School, Congress would have that power because it has the authority to regulate interstate commerce, which would include boosting the COVID-19 ravaged economy.

“Saying we’re doing this to restart a national economy that has basically collapsed—it would be pretty hard to say that isn’t directly related to interstate commerce,” Goldberg told the New York Times.

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