COVID-19 Liability Shield Fizzles In Va. Legislature

By Braden Campbell
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Law360 (September 3, 2020, 9:24 PM EDT) -- Virginia will not be joining the list of states that have limited businesses' legal liability to workers and customers who contract COVID-19 after its House of Delegates scrapped an immunity proposal Thursday.

The House referred the bill, H.B 5074, to its Courts of Justice Committee, which is not scheduled to meet again for the remainder of the legislative session. The move comes a day after the state Senate struck its version, S.B. 5067, from its calendar.

The proposal's demise is "a clear victory for workers," David Broder, president of Service Employees International Union Virginia 512, told Law360.

"Our union members are front-line public service workers. They're social workers, they are public health nurses, local health department staff, and mental health therapists," Broder said. "They're folks who have been on the job every single day since the pandemic started, and it's been terrifying for them."

The bills' defeat comes amid a heated debate over how to balance public safety against the health of the economy during the coronavirus pandemic.

Business advocates, including the U.S. Chamber of Commerce and the National Federation of Independent Business, or NFIB, have pushed so-called COVID-19 liability shields, arguing the risk of frivolous lawsuits has hampered businesses during the worst economic crisis in more than a decade. But labor unions and other opponents say these proposals weaken already feeble protections for workers whose jobs expose them to the coronavirus.

Broder said a coalition of labor unions and community and faith groups including SEIU Virginia 512 opposed Virginia's proposal, which would have shielded businesses from liability "in the absence of gross negligence or willful misconduct."

Enacting such a shield would have weakened Virginia's first-in-the-nation COVID-19 workplace safety rules, Broder said. The emergency temporary standard, which the state adopted in July, requires businesses to implement certain workplace safety measures or face fines from the Virginia Department of Labor and Industry.

"I think you saw folks in both the Senate and the House recognize what we saw," Broder said. "I applaud Delegate [Rip] Sullivan and Senator [Richard] Saslaw for striking their bills. It was the best thing to do to protect workers."

NFIB Virginia Director Nicole Riley said the group is disappointed the effort fizzled, which she attributed to disagreements over how businesses would trigger protection. The Senate version would have shielded businesses that make "a good faith effort" to follow COVID-19 laws and regulations, while the House version required compliance. That latter trigger was too strict for businesses deluged with safety rules, Riley said.  

"We definitely weren't asking for a free pass," Riley said. "The bad actors … there was still an opportunity to hold them accountable through the court system, through lawsuits."

The safety rule would still have teeth had the measure passed, Riley added. 

Fourteen states, including Georgia, North Carolina and Tennessee, now have COVID-19 liability shields on the books, and measures have been proposed in a dozen other states.

At the federal level, Senate Republicans have made a liability shield a central pillar of their proposal for a new COVID-19 relief measure, but House Democrats oppose such a protection.

Representatives for Saslaw, Sullivan and the Virginia Chamber of Commerce did not immediately respond  to requests for comment Thursday.

--Editing by Jill Coffey.

Correction: An earlier version of this story misstated bill details. The error has been corrected. 

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