McConnell’s Proposal Would Grant Legal Immunity to Corporations That Have Done Nothing at All to Protect Workers, Consumers

CORPORATE ACCOUNTABILITY, NOT IMMUNITY

Welcome to the latest edition of “Corporate Accountability, Not Immunity,” a daily tipsheet highlighting key news and important facts on why Congress should not give corporations legal immunity from coronavirus-related harms to workers, consumers, patients and the public. Also refer to our tipsheet on misleading claims from industry groups and conservative lawmakers. Please send tips, feedback and questions to David Rosen at drosen@citizen.org.

SUMMARY OF THE SENATE GOP’S CORPORATE IMMUNITY PROPOSAL: U.S. Senate Majority Leader Mitch McConnell (R-Ky.) and U.S. Sen. John Cornyn (R-Texas) have drafted a proposal that grants schools, businesses, health care providers and nonprofits legal protections from coronavirus-related lawsuits from December 2019 through 2024, according to a summary obtained by Politico. Under the proposal, businesses would be liable only for gross negligence or intentional misconduct. For coronavirus-related personal injury and medical liability cases, the proposal sets a clear-and-convincing-evidence burden of proof, places a cap on damages and heightens pleading standards. It also shields employers from lawsuits arising from coronavirus testing in the workplace. In May, a 140 organizations representing consumers, workers, long-term care residents, and others wrote to Congress to oppose immunizing companies from coronavirus-related lawsuits.

THERE IS NO FLOOD OF COVID-19 LAWSUITS: “So 36 million people are collecting unemployment benefits, and the thing that has the Republican Party really exercised is 107 lawsuits,” David Dayen, editor of The American Prospect, noted on Thursday referencing the Hunton Andrews Kurth case tracker. As Dayen explained, the tracker shows only 67 cases of the kind that McConnell claims are flooding courts: cases about conditions of employment, wrongful death, exposure to COVID-19 or a lack of personal protective equipment. Of the 33 wrongful death cases, almost all are against nursing homes. Among six malpractice cases, only one is a COVID-19 misdiagnosis that resulted in death; three are about nursing homes. “The supreme irony here is that America doesn’t award workers or patients or customers much of anything, almost ever, in litigation, which is protected by arbitration agreements” and other barriers to suit, Dayen noted. “It would be a non-problem even if the alleged flood were on the shores. But the relative trickle makes it completely farcical.”

CDC GUIDELINES REQUIRE NOTHING: The voluntary guidelines from the Centers for Disease Control and Prevention (CDC) contain caveats, qualifiers and modifiers in nearly every recommendation, which means it’s possible for companies to “comply” without doing anything at all. For example, the CDC’s guidelines for meat processors include:

  • “Configure communal work environments so that workers are spaced at least six feet apart, if possible.”
  • “Modify the alignment of workstations, including along processing lines, if feasible, so that workers are at least six feet apart in all directions (e.g., side-to-side and when facing one another), when possible.”
  • Ideally, modify the alignment of workstations so that workers do not face one another.”
  • Consider using markings and signs to remind workers to maintain their location at their station away from each other and practice social distancing on breaks.”
  • “Use physical barriers, such as strip curtains, plexiglass or similar materials, or other impermeable dividers or partitions, to separate meat and poultry processing workers from each other, if feasible.”
  • “Facilities should consider consulting with a heating, ventilation, and air conditioning engineer to ensure adequate ventilation in work areas to help minimize workers’ potential exposures.”

A company can technically comply with these guidelines without making any changes at all to their workplace, and under McConnell’s proposal that would be sufficient to grant them legal immunity for five years.