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WASHINGTON — Calls to protect corporations and schools from legal blame if workers fall ill from Covid-19 contracted on the job have incited a growing backlash as Congress and the White House negotiate over liability protections in economic relief legislation.
Businesses, hospitals, schools and the trade groups that represent them have pushed for any relief package to include protections from Covid-related lawsuits. But so far, there has been little sign of a surge in litigation as the economy reopens, and prominent voices have opposed such a measure, arguing that liability shields are unfair to workers and that businesses must take responsibility to keep them safe.
The issue has spilled into the world of sports. On Wednesday, College Athlete Unity, an organization that represents thousands of athletes at universities, wrote a letter to the N.C.A.A. and the Big Ten Conference urging them to revise plans for resuming fall sports. Among the proposals was to ban the use of Covid-19 waivers.
The players’ associations for the N.F.L., N.B.A., N.H.L., Major League Baseball and Major League Soccer have made a similar plea. In a letter to top Republican and Democratic lawmakers last Friday, they said that inserting liability protections in the legislation would be wrong.
“There is still much that is unknown about this disease, how it spreads, and the long term consequences of exposure,” they wrote, arguing it was unclear how such legislation would affect safety agreements that have been made between employers and employees. “It makes little sense during these uncertain times to both ask employees to return to work and, at the same time, accept all the risk for doing so.”
Some businesses — including salons, amusement parks, gyms and even President Trump’s campaign rallies — have required those who come in their doors to promise not to sue if they contract the virus. But a Republican proposal would offer a much bigger shield: It would provide five years of legal protection for businesses, hospitals, schools and nonprofits that make “reasonable efforts” to comply with government standards to protect their workers and customers from coronavirus-related lawsuits.
Neil Bradley, executive vice president and chief policy officer of the U.S. Chamber of Commerce, said lawsuits have already been filed, and the number will grow as the economy continues to reopen.
“The right thing to do is provide an incentive for employers and universities to make sure they are adopting the right public health measures and give them the confidence that, having done so, they are not going to be dragged into court and second-guessed years from now,” he said.
The Republican proposal would funnel all coronavirus-related work claims into the federal courts, where plaintiffs would have the right to bring personal injury and medical liability suits until 2024, or the coronavirus is no longer a public health emergency, whichever comes first.
But those suits would face a high bar. Plaintiffs would need to prove that their illness resulted from gross negligence or willful misconduct on the part of the employer, not just carelessness or a lack of resources, like protective equipment. It would also limit lawsuits relating to coronavirus testing and personal protective equipment, if that equipment meets the standards of the Food and Drug Administration.
Damages would be capped, and there is a provision that would make some employees think twice about suing: Those who bring claims without merit could be subject to punitive damages and civil penalties of up to $50,000.
Many unions and workers’ rights advocates have objected to the proposal, saying that it would result in negligent behavior on the part of businesses and schools and lead to more coronavirus cases and more deaths.
The issue remains a contentious one in Washington, even as Senator Mitch McConnell, the majority leader and a Republican of Kentucky, insists that he will not allow any legislation to pass without the protections he has outlined.
“This is not just liability protection for businesses — they’re included along with everyone else dealing with this brand-new disease,” Mr. McConnell told CNBC late last month. “Unless you’re grossly negligent or engage in intentional misbehavior, you’ll be covered. And it will be in a bill that passes the Senate.”
The White House has been noncommittal, however. President Trump has said he is focused on eviction protections and unemployment benefits. And in a briefing on July 31, the White House press secretary, Kayleigh McEnany, said a liability protection provision was Mr. McConnell’s priority and reiterated Mr. Trump’s focus on unemployment.
Congressional Democrats have argued that the administration should focus instead on strengthening workplace protections through the Occupational Safety and Health Administration, and it remains unclear whether they could be enticed to accept some version of a liability waiver.
House Speaker Nancy Pelosi said last month that a liability shield could force workers to choose between their health and their financial well-being.
“If you get sick, you have no recourse because we’ve given the employer protection,” Ms. Pelosi, Democrat of California, said on “Face the Nation” on July 26. “And if you don’t go to work because you’re afraid of being sick and you have that job opportunity you don’t get unemployment insurance. This is so unfair.”
Polls have shown conflicting results on the public’s embrace of such a shield. A survey for the American Association for Justice, a group representing plaintiffs’ lawyers, showed nearly two-thirds of the public opposed such protections, while a U.S. Chamber of Commerce-funded poll found that 61 percent supported congressional protections from coronavirus-related lawsuits.
Julia Duncan, the senior director of government affairs at the American Association for Justice, said liability protections would take away an important tool for some of the country’s lowest-paid workers, who are disproportionately people of color, to secure more protections from big employers such as Amazon, Tyson Foods and McDonald’s.
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- As of right now, that seems likely, for at least several months. There have been frightening accounts of people suffering what seems to be a second bout of Covid-19. But experts say these patients may have a drawn-out course of infection, with the virus taking a slow toll weeks to months after initial exposure. People infected with the coronavirus typically produce immune molecules called antibodies, which are protective proteins made in response to an infection. These antibodies may last in the body only two to three months, which may seem worrisome, but that’s perfectly normal after an acute infection subsides, said Dr. Michael Mina, an immunologist at Harvard University. It may be possible to get the coronavirus again, but it’s highly unlikely that it would be possible in a short window of time from initial infection or make people sicker the second time.
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- It is unlikely that many schools will return to a normal schedule this fall, requiring the grind of online learning, makeshift child care and stunted workdays to continue. California’s two largest public school districts — Los Angeles and San Diego — said on July 13, that instruction will be remote-only in the fall, citing concerns that surging coronavirus infections in their areas pose too dire a risk for students and teachers. Together, the two districts enroll some 825,000 students. They are the largest in the country so far to abandon plans for even a partial physical return to classrooms when they reopen in August. For other districts, the solution won’t be an all-or-nothing approach. Many systems, including the nation’s largest, New York City, are devising hybrid plans that involve spending some days in classrooms and other days online. There’s no national policy on this yet, so check with your municipal school system regularly to see what is happening in your community.
“Bringing a lawsuit is the only leverage they have to say, ‘I would like to be treated safer, I would like to be provided protective equipment, I would like to be provided time to wash my hands,’” Ms. Duncan said. “And if these lawsuits go away, companies like Amazon and Tyson are going to be able to do anything and not be held to account.”
Other critics of the proposal say it could infringe on the rights of states, which typically regulate these kinds of legal protections. Many states, including Kentucky, Alaska and Missouri, have already expanded legal protections for businesses or offered expanded workers’ compensation to essential workers who contract coronavirus at work.
“Whatever happened to conservatives’ belief in states’ rights?” Amy Dru Stanley, a history professor at the University of Chicago, wrote in an op-ed in The Washington Post.
Opponents of the provision, including the American Association of Justice, also argue that the United States has not yet seen a profusion of coronavirus-related lawsuits, because the requirements for bringing such a suit are already high. Companies that act reasonably are protected from such lawsuits, and plaintiffs have to prove that they contracted the coronavirus at the place of business, not somewhere else, they say.
“I think the purpose of this bill, to inoculate employers from this pandemic of litigation, sounds like a solution in search of a problem,” said Paul Matiasic, a lawyer who is representing a widow, whose husband worked at a Safeway distribution center and died after contracting the virus, in a case against the grocery chain. “I think trial lawyers have been very discerning in terms of what cases they’ve brought.”
A widely cited tally kept by the law firm Hunton Andrews Kurth shows that through Aug. 3 there have been nearly 4,000 legal complaints related to Covid-19, including disputes over business interruption insurance and rent delinquencies. So far, just 75 of those have been related specifically to exposure to Covid-19 at work or wrongful death. However, that number fails to capture workers’ compensation insurance claims that employees are filing when they get sick, according to Torsten Kracht, a partner at the firm.
Mr. Bradley, the Chamber of Commerce vice president, said some trial lawyers had already started advertising about coronavirus-related lawsuits. “You’re not advertising to attract clients to sue someone unless you think there’s an opportunity to sue,” he said.
Ms. Duncan, of the trial lawyers group, said the protections in the Republican proposal — although confined to coronavirus cases — would be a victory for businesses seeking to take liability cases away from the states. “If they could get a sweeping corporate federal immunity language enacted, albeit using this specific crisis to do it, they will all of a sudden achieve this thing they wanted for 30 years,” she said.
The fight over liability protection follows battle lines drawn decades ago between the business associations and the Republican Party on one side, and trial lawyers, unions and Democrats on the other. But this time it has drawn schools and universities into the mix.
In early July, the School Superintendents Association, the National School Boards Association and the Association of Educational Service Agencies sent a letter to Congress arguing for the liability protections.
“Any such litigation would disrupt the school district’s budget, a budget already likely to have been squeezed in response to the pandemic and related state and local funding cuts,” the letter said.
Luke Broadwater and Emily Cochrane contributed reporting.
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