by C.C. Campbell-Rock

Red flags are popping up in the national discourse about the fate of the country’s rule of law, democracy, fascism, Trump and extreme-right Republicans’ attack on mail-in voting, and the Department of Homeland Security’s unidentifiable storm troopers in American cities. As alarming as Trump’s antics are, a more sinister threat is flying under the radar. COVID immunity for who?

Senate Majority Leader Mitch McConnell (R-KY) included a proposal in the current Republican-drafted Coronavirus Relief Bill that includes liability protection for businesses, schools, and hospitals against coronavirus-related lawsuits.

Put simply, if you get ill or die from coronavirus while working or if you have to go to a hospital, or when you are on a campus, or shopping, you can’t sue them. When the potential health effects of coronavirus are considered: heart and lung damage, motor skill problems, etc., such legislation means that people who contract the virus will have to suffer both physically and economically, without recourse. If the legislation passes, coronavirus victims will have to bear the cost of lost wages, hospital bills, rehabilitation services, and other unforeseen damages. COVID immunity for who?

“McConnell has signaled that COVID-19 corporate immunity is his “red line” for considering another much-needed economic stimulus package. In effect, he is holding hostage besieged state and local governments, which are targeted to receive up to $500 billion in aid in a package passed by the House in mid-May. McConnell has already made clear his willingness to let states go bankrupt rather than provide them federal assistance,” the Los Angeles Times reported.

“It would transfer the enormous costs for potentially culpable conduct from businesses, which already enjoy limited liability and very favorable rules in the civil justice system, to victims or society as a whole. At the same time, it would sharply reduce incentives to minimize COVID-19 transmission.,” former U.S. Attorney Harry Litman and host of the podcast “Talking Feds” wrote in an LA Times opinion piece.

Senate Majority Leader Exerts Power

“No bill  will pass the Senate without liability protection for everyone related to the coronavirus,” McConnell said during the recent Senate recess.

It comes as no surprise that McConnell and Senator John Cornyn’s proposal would give federal courts jurisdiction over lawsuits related to personal injuries or medical liability tied to coronavirus infections. Surely, McConnell expects all of those federal judges he and fellow Republicans have put on the bench to do Trump’s bidding and rule in favor of corporate profits over people.

Senate Minority Leader Charles Schumer (D-N.Y.) called the GOP proposal a “liability shield for CEOs.”  “From what we understand from press reports, Leader McConnell’s bill will prioritize corporate special interests over workers and main street businesses and will fail to adequately address the worsening spread of the Coronavirus,” Schumer wrote to colleagues.

“We do need protections because businesses are going to get sued just because somebody walked in,” Trump told Fox News’ Chris Wallace. So, we do need some kind of immunity.  You do need it just like you need immunity for the police, OK, whether they like it or not. You need immunity for the police. But they do need a form of immunity. You don’t know if they caught it. And nobody’s ever going to be able to prove it one way or the other.”

“This one-party approach to this legislation is the same approach that delayed the passage of the CARES Act and the subsequent interim emergency relief legislation, failed on policing reform, and it won’t work this time around either,” Schumer wrote and tweeted.

COVID immunity for who? McConnell’s legislation would shield service providers, businesses, and schools for five years.

“The Senate leader wants to block businesses from being sued for putting people at risk of Covid-19—thus ensuring people are put at risk,” Attorney Elie Mystal wrote in The Nation.

The bold, no-filter legal analysis added, “It’s important to understand what McConnell is proposing here: He’s saying that he will withhold aid money to state and local governments fighting the Covid-19 pandemic if the package does not include legal giveaways to protect businesses from the justice system. People have a right to sue. McConnell is not only trying to take that right away; he’s willing to hold public relief money hostage in order to do it.”

“To me, “legal liability” is the answer to many of our social ills. Liability for gun manufactures would make mass shootings less common. Liability for local and state police departments would make cops less trigger-happy. And liability for employers would make them a lot less eager to risk the health and safety of their workers and customers in a rush to “reopen” the economy,” Mystal continued.

However, several states are not waiting for Congress to provide immunity. Six states have granted nursing homes immunity from coronavirus lawsuits, while another six have provided immunity to health care workers, which nursing homes will argue extends to them once the lawsuits start,” according to news reports.

A total of 3,512 coronavirus lawsuits have been filed in state and federal courts across the country from January to mid-July, according to a tracking system run by the law firm Hunton Andrews Kurth.

Yet the tracker found that just 302 of the cases are based on labor and employment issues — most are by prisoners seeking release, businesses suing insurance companies, and other matters.

Speaker of the House Nancy Pelosi (D-CA) told reporters she was not in favor of McConnell’s liability proposal. “Especially now, we have every reason to protect our workers and our patients in all of this. So, we would not be inclined to be supporting any immunity from liability,” but she later said she wants to see the framework of what he’s proposing.

One possible compromise in Congress might be to approve an OSHA standard that would protect employers who follow it from liability lawsuits.

Pelosi said the Senate should approve a measure in the $3 trillion HEROES Act the House passed in May to require the Occupational Safety and Health Administration to issue a temporary emergency standard for coronavirus safety at workplaces. The HEROES Act has been sitting on McConnell’s desk, as are 400 other bills passed by the House, since its passage in the House.

Immunity for Who?

A letter signed by six Democrats and six Republicans in the House to congressional leaders urged them “to implement targeted and limited-time COVID-19 liability protections” for health care providers and businesses that follow health and safety guidelines.”

And 10 House Republicans wrote House Minority Leader Kevin McCarthy (R-Calif.) suggesting that “If businesses abide by the OSHA standards, they should be protected from baseless lawsuits.”

“That’s a much better way to go about this than all of this immunity,” Pelosi said.

The bottom line in all of this back and forth over immunity is that a compromise must be made that accommodates, first and foremost, the American people.

The liability immunity proposal is on track to delay the next much needed Coronavirus Relief bill and the American people will suffer if a compromise is not reached.

Enhanced unemployment payments will expire at the end of this month, people’s rents and mortgages are due, hospitals need more PPE, states need budgetary relief cities need more testing supplies, and schools need funding to safely open during the upcoming school year.

Litman offered a different proposal that could solve the liability problem. “We cannot hope to give 100% compensation to everyone who will deserve it. But a 9/11-type fund could achieve rough justice in a lot less time, with more certainty than lawsuits. It would be light-years more fair than the corporate-immunity proposal McConnell wants to ram through Congress.”

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