Trade Groups Join Chamber's Push For Virus Liability Shield

By Kevin Stawicki
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Law360 (May 27, 2020, 5:06 PM EDT) -- As lawsuits stemming from the COVID-19 pandemic crop up, the U.S. Chamber of Commerce and hundreds of trade organizations are ramping up calls for Congress to pass legislation protecting businesses from legal liability as they reopen.

The pro-business lobby, joined by more than 200 trade associations, said in a Wednesday letter to lawmakers that temporary legislation would protect four groups of businesses from an "onslaught of frivolous lawsuits" related to employee and consumer coronavirus infections. The letter comes a week after the chamber and dozens of state business groups made similar calls

Nonprofit organizations and educational institutions, health care facilities, manufacturers of vaccines and therapeutics, and public companies at risk for securities litigation should be protected from COVID-19-related liability in the short term, without letting "truly bad actors" get away with misconduct, the groups said.

"Temporary, targeted and timely liability relief is critical as employers work to keep their employees and customers safe and reopen their doors as America moves towards recovering from this crisis," Neil Bradley, the chamber's vice president and chief policy officer, said in a statement. "Without temporary liability protections many companies face a daunting choice of either staying closed and risking bankruptcy or reopening and risking a business-crippling lawsuit."

The chamber and industry groups, which included the American Academy of Family Physicians, Food Industry Association and National Small Business Association, said that companies that have provided health care, developed treatments, maintained the food supply and otherwise contributed to recovering from the crisis shouldn't have to deal with the constant threat of litigation that could sink some businesses.

Those endorsements hardly come as surprise, as the health care, manufacturing and food industries face some of the biggest threats from litigation over their response to the coronavirus crisis.

Tyson Foods, the biggest meat processor in the U.S. and one of several processors that have temporarily shuttered plants due to pressure from local authorities and unions, has been hit with a wave of litigation over virus-related deaths.

In April, Liberty University was sued by an unidentified student over the school's downplaying of the coronavirus threat and refusal to return students' "room and board and other campus fees" after moving classes online. The suit seeks refunds of thousands of dollars of tuition paid for the spring semester.

Wednesday's letter comes as Congress mulls potential legislation that would be bundled with the next COVID-19 relief package. Senate Majority Leader Mitch McConnell, R-Ky., has said a business liability shield is a "red line" issue and a top Republican priority.

Democratic lawmakers, union leaders and workers' advocates have slammed the proposals as egregious requests to avoid responsibility for worker safety.

The AARP urged Congress on March 11 to reject proposals for virus-related legal immunity, saying in a letter that the death toll of the pandemic only underscores the necessity for companies to be held accountable for negligence that leads to harm or death.

During a May 12 Senate Judiciary Committee meeting, senators on both sides of the aisle expressed concerns that there is no de facto standard of care since safety guidelines issued by the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration are merely recommendations that are not enforceable.

But letting up on liability would be dangerous, according to Rebecca Dixon, executive director of the National Employment Law Project, a workers' advocacy organization, who testified during the May 12 hearing.

"Workers and consumers must be able to hold employers accountable for unsafe workplaces and other violations of the law," she said. "Were Congress to grant employers the immunity that some have long sought, it would create disincentives for even law-abiding employers to protect their workers — producing a race to the bottom for workplace standards — and would cause a health and safety disaster." 

--Additional reporting by Y. Peter Kang. Editing by Gemma Horowitz.

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