Labor Orgs Say COVID-19 Liability Shields Undermine Safety

By Danielle Nichole Smith
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Law360 (December 14, 2020, 9:20 PM EST) -- Labor advocates have slammed proposals to include coronavirus-related liability protections for employers as a part of Congress' COVID-19 relief plan, arguing that those provisions would hamper OSHA and other agencies from protecting workers from the virus.

Over the weekend, the AFL-CIO sent letters to U.S. senators and representatives urging them to "reject any broad liability shield legislation that would prevent the federal government from ensuring that workers are protected from the spread of COVID-19 in our workplaces."

The AFL-CIO pointed specifically to a proposal from Sen. John Cornyn, R-Texas, that the labor federation contended would prevent the Occupational Safety and Health Administration from enforcing new safety standards while also keeping states from filling in the gap.

According to the labor federation, the proposal has "an enormous and dangerous loophole that will let employers off the hook for not following workplace safety requirements."

"In this case, 'liability protection' is really a misnomer. What the Cornyn proposal actually does is undermine worker safety and strip workers of our protections," the letter said. "To use a pandemic relief proposal to actively harm the lives and livelihoods of workers is among the most disgraceful things ever to be put forth by the United States Congress."

In a press call Monday, leaders from the National Employment Law Project, Public Citizen, Service Employees International Union, Consumer Voice, Bazelon Center for Mental Health Law and The Leadership Conference on Civil and Human Rights were also very critical.

It's "outrageous and immoral, but sadly not surprising, that the Republicans in Congress led by Mitch McConnell are further rigging the rules for corporations at the expense of the lives of essential workers and the livelihoods that we seek to earn," said Mary Kay Henry of SEIU.

According to Debbie Berkowitz of NELP, employers who "just considered trying to protect workers and decided not to" and employers who "generally complied" would be off the hook under the proposal. And though OSHA can't go into every workplace, the agency's deterrent effect works, Berkowitz said.

Recently, Sen. Mitch McConnell, R-Ky., backed away from his goal of obtaining a coronavirus-related liability protections for employers, suggesting that Congress pass a bill with neither a shield nor funding for state and local governments.

On Monday, the U.S. Chamber of Commerce, which supports liability relief, praised a COVID-19 relief proposal from Sens. Rob Portman, R-Ohio, and Joe Manchin, D-W.Va., that was unveiled the same day, calling it "a truly bipartisan compromise."

"The Portman-Manchin proposal required significant compromise on both liability protections and state and local aid. It should become law," Executive Vice President and Chief Policy Officer Neil Bradley said.

However, Bradley also agreed that those provisions shouldn't hold up relief from the pandemic.

"If, however, there is insufficient support, which appears to be the case, for including liability protection and state aid, Congress must pass the remainder of [the] pandemic relief package developed by the bipartisan working group," Bradley said. "Partial agreement is better than no agreement.

Karen Harned, the executive director of the National Federation of Independent Business Small Business Legal Center, told Law360 on Monday that bad actors would still be held accountable under the bills she's seen.

"This is for people who are trying to do the right thing, trying to follow the rules," Harned said. "We just think it's essential for the confidence of small business owners to get back in business, for them to have these protections and not have to worry that a lawsuit is going to put them out of business."

--Editing by Haylee Pearl.

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