McConnell’s “Liability Shield” Is a Weapon Aimed at COVID-19 Victims

Why are Republicans pushing a bill that will encourage harmful behavior during a pandemic?

Last week, Senate Republicans unveiled the HEALS Act, their proposal to address the continued devastation that COVID-19 is wreaking on the country. The Act, a collection of discrete bills authored by various Senators, would have far-reaching consequences. One of the bills, Texas Senator John Cornyn’s SAFE TO WORK Act, would restrict lawsuits based on coronavirus exposure against employers, businesses, and many other potential defendants. Majority Leader Mitch McConnell has indicated that the liability restrictions are a critical Republican requirement for further COVID-19 relief measures.

Senator Cornyn claims that his bill “would protect those acting in good faith from being sued into oblivion while ensuring bad actors who willingly put their patients, employees, or customers in danger will still be held accountable.” Employers and businesses no doubt are dealing with great challenges given these extraordinary circumstances. And it is sensible for legislators to seek a balance between accountability for bad actors who fail to take reasonable precautions and the threat of ruinous liability for employers and businesses doing their best. Yet the bill’s complex procedural requirements make any hope of accountability impossible. In fact, the bill actually encourages harmful behavior.

The legislation’s provisions are complex, but here’s a brief overview of how it works. It creates a new federal cause of action that preempts other federal, state, or tribal causes of action “related to recovery for personal injuries caused by actual, alleged, feared, or potential for exposure to coronavirus.” The federal cause of action requires plaintiffs to prove that the defendant’s “gross negligence” or “willful misconduct” caused injury. That means that even if, say, Missouri law permitted a line cook harmed by a restaurant’s ordinary negligence that caused them to contract COVID-19 to sue for damages, federal law would forbid the suit. The only exception is for laws that are more restrictive, meaning the goal isn’t uniformity, just limits on liability.

This alone is quite significant. The bill is purportedly justified under Congress’s constitutional authority to regulate interstate commerce. Senator Cornyn himself has previously stressed that “the states retain the general lawmaking power” and rejected the notion that “the power to regulate interstate commerce essentially makes the federal government a government of unlimited power.” Yet he and his fellow Republicans, who extol the virtues of federalism, seem happy enough to make an unprecedented federal power grab here by federalizing tort law—which is normally within states’ control. That’s especially unjustified given that many states have already begun crafting liability-limitation legislation.

But the bill goes much further. It contains numerous interlocking procedural restrictions that make it essentially impossible for a plaintiff to prevail. For one, the bill requires proof by “clear and convincing” evidence—an unusually high burden for most civil cases. It requires plaintiffs to detail their factual allegations with a much higher degree of specificity than is usually required.

The bill also creates a “safe harbor” for defendants, which says that whenever a defendant can point to any “written or published policy” in line with applicable government regulations, the defendant will be presumed to have acted reasonably, even if the “policy” is just boilerplate language they did not actually follow. If a defendant’s motion to dismiss the suit is unsuccessful, it can take an immediate appeal—potentially delaying litigation for years. Plaintiffs’ ability to obtain relevant evidence through discovery is sharply limited. Damages for any plaintiff lucky enough to achieve a victory are restricted.

Each one of these requirements individually puts a big thumb on the scale in favor of defendants. Collectively, they pose nearly insuperable obstacles to recovery for plaintiffs—even when they seek recovery from actors who engaged in egregious misconduct that caused death or serious injury. The effect will be to discourage entities, such as warehouse operators or meat-packing plants, to take even reasonable precautions to prevent harm.

But few plaintiffs would really ever risk getting this far. That’s because of the worst provisions in what is already a bad bill. The Act doesn’t just make it hard for plaintiffs to win; it makes it potentially devastating for them to even consider suit. If a victim requests compensation “in exchange for settling . . . or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-related action,” the recipient of the request can seek compensatory damages, punitive damages, and attorneys’ fees if the claim is “meritless.”

Given how hard the Act makes it to win such claims, and how easy it makes it for defendants to demonstrate that they took “reasonable precautions,” the Act has all but pre-ordained all COVID-19 claims as “meritless.” In practice, an employee who merely emails her employer requesting compensation for COVID-19-related harm caused by the employer’s negligence exposes herself to thousands of dollars in damages. This provision would discourage reasonable requests for compensation by employees. And it may well violate the First Amendment’s guarantee of free speech, given that it effectively punishes employees for simply communicating with their employers.

Nor will victims easily find legal representation. Lawyers, too, can be sued for “meritless” compensation requests. The Act also permits the U.S. Attorney General to sue anyone who he “has reasonable cause to believe . . . is engaged in a pattern or practice of transmitting demands for remuneration” that are meritless. Each compensation demand exposes the sender to a civil fine of up to $50,000.

Lawyers representing COVID-19 plaintiffs would quickly be put out of business. At the same time, the bill would create a cottage industry for suits against injured plaintiffs and their attorneys. These lucrative countersuits are subject to none of the stringent requirements the bill places on injured parties seeking compensation.

In total, the bill represents an assault on the American civil justice system that is without precedent in federal law. In the few instances where Congress has broadly preempted state lawsuits, it has done so alongside federal regulatory schemes designed to promote the public good or alternative systems for compensating injured parties. Congress preempted lawsuits against the airline industry arising out of the September 11 attacks, but it quickly created a Victims’ Compensation Fund to compensate 9/11 victims and their families. The National Childhood Vaccine Injury Act bars tort claims against vaccine manufacturers, but it also created a compensation program to provide recovery to those injured by vaccines without the need to establish fault by the manufacturer. Here, by contrast, Senate Republicans want to prevent states from using tort liability, but they are leaving health regulation to the states and aren’t creating any federal mechanisms for compensating victims.

There are steps Congress might take that would strike an appropriate balance between victim’s interests, the need to protect essential services acting reasonably, and federalism values. Instead, this bill gives businesses a free pass at the expense of COVID-19’s victims. If passed into law, the bill would make it anything but safe for the country to go back to work.

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Daniel Epps and Maria Glover

Daniel Epps is an associate professor of law at Washington University in St. Louis. J. Maria Glover is a professor of law at Georgetown University Law Center.