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Loophole Language and Compliance Caveats

Why 'Compliance' With the CDC’s Coronavirus Guidelines Must Not Be the Basis for Corporate Immunity

By Sarah Lim and Robert Weissman

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During a White House press briefing on June 19, 2020, a reporter asked press secretary Kayleigh McEnany if she and her colleagues intended to wear masks to President Trump’s campaign rally the next day in Tulsa, Oklahoma, as called for by the Centers for Disease Control and Prevention (CDC) guidelines. McEnany responded that she would not wear a mask and that doing so was “in compliance with CDC guidelines, which are recommended, but not required.”

McEnany was not wrong. The CDC’s guidelines for large gatherings only urge organizers to consider mandating masks. McEnany honed in on the very tentative language of the CDC recommendations.

As guidelines, the CDC’s standards are, by definition, not binding or enforceable. But enforceability aside, the CDC guidelines on their own terms give businesses, organizations, schools and others almost complete discretion as to whether they should follow the substantive recommendations that CDC provides. The guidelines urge businesses and others to “consider” certain actions, and to implement protective standards if “feasible” or when “possible.”  This sort of loophole language surrounds the bulk of the CDC’s most consequential recommendations.

These loopholes are especially pervasive in the CDC’s recommendations for “engineering controls,” the preferred approach to reduce risk where hazards cannot be removed (“elimination”) or replaced (“substitution”). Engineering controls adjust workplaces or establishments to reduce exposure to the hazards. In other words, the most important CDC recommendations are the most loophole ridden.

The CDC guidelines also fail to direct businesses when they should close, or what conditions should be met as a condition of opening.

These fundamental weaknesses in the CDC recommendations takes on extra importance in the context of proposals to grant businesses immunity from lawsuits when their negligence causes workers, consumers or patients to contract Covid-19. Most of those proposals would grant immunity if businesses attempt to comply with CDC or any other guidelines. The Senate Republican proposal would even require plaintiffs to make an affirmative showing that a business is violating CDC or other guidelines. In general, there is good reason to oppose proposals to make regulatory compliance an absolute defense (e.g., the rules may be too weak, or not mandate appropriate protections in a particular context). But where regulatory standards give near-total discretion to businesses, as is the case with the CDC guidelines, a compliance defense amounts to immunity even when the entities do almost nothing.

Imagine a lawsuit by a retail salesperson who contacted the virus after her employer had instructed the salespeople not to wear masks. Under the current Senate proposal introduced by Sen. John Cornyn of Texas, the employer likely could not be held liable if it showed that it had considered requiring masks but decided that it would not be good for business. Under the bill, this defense could succeed even though the store owner rejected the substance of the CDC’s recommendation.

More generally, under proposals being discussed in the Senate, the permissive language in the CDC guidance would in many cases make it virtually impossible for affected workers, consumers or patients to sue businesses whose actions led to their contracting COVID-19. Even businesses that recklessly disregard their duty to take reasonable care with regard to employees and consumers may be able to escape accountability, by claiming that they technically complied with the letter of CDC (or other) guidelines.

The balance of this report includes, verbatim, the CDC’s guidelines for businesses and employers, institutes of higher education and four occupation areas: agricultural, meat and poultry processing, manufacturing, and casino businesses. (The CDC has posted worker safety guidelines for 37 occupations, but the others are either generally the same as the ones highlighted here or far less detailed.) The report highlights that the recommendations are weak, suggestive and full of caveats:

Gaping loopholes – calling for “consideration” of mitigation steps or implementation where “feasible” or “practical” – are highlighted in yellow. Recommendations that describe what businesses “should” do, rather than what they “shall” or “must” do, or are simply instructed to do, are highlighted in green.

Review of these recommendations demonstrates the degree to which the CDC guidelines are a Swiss cheese of loopholes, caveats and conditional language. Affording businesses immunity for complying with CDC guidelines is commensurate with affording immunity to businesses that merely consider, but choose not to implement, appropriate safety measures.

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