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Employers: No Liability if Employee Get COVID-19

Business groups want companies protected from employee lawsuits

Posted on
Apr 22, 2020

Frontline workers are being asked to work in some of the most dangerous times and are sometimes being asked to do it without proper PPE. Whether the employer didn't have enough like in many hospitals or they issued a ban on PPE, some businesses allowed their employees to get sick. Now business groups are lobbying Congress to protect them from possible lawsuits. Read more below from Roll Call.

The U.S. Chamber of Commerce and conservative groups are lobbying lawmakers to give companies legal immunity if front-line workers believe they got sick on the job, or if families say their loved one died after catching COVID-19 at work.

Lawsuits from workers who were exposed to COVID-19 are “perhaps the largest area of concern for the overall business community” ahead of the economy reopening, a chamber memo to its members this week states.

The powerful lobby argues the sheer number of lawsuits could overwhelm businesses.

Businesses say they keep their workplaces safe, but the memo indicates that major corporations privately acknowledge that many so-called essential employees will get sick or die.

Conservative groups including Americans for Prosperity, the nonprofit founded with funding from businessmen Charles and David Koch, made a similar appeal to members of Congress in a letter this week.

“Vital industries that support our economy could suffer catastrophic bankruptcies,” the groups wrote.

The recommendation came as the White House was preparing its advisory plan to reopen businesses.

It also comes amid a climbing death toll of low-wage workers from across the country, including grocery store clerks and meat processing plant employees. In the last week, employees at the country’s two largest employers — Walmart Inc. and Amazon — have died.

Walmart already faces a wrongful death lawsuit in Chicago, where two associates who worked at the same store died.

Employees say they are increasingly fearful of catching the deadly virus at work. They say not enough is being done to protect them.

“We’re ‘essential,’ which means sacrificial,” said Jennifer Suggs, a Walmart associate in Hartsville, S.C. “Upper management, Walmart, they’re making their money. They do not care about us.”

Suggs said her store allowed for a surge in foot traffic as demand for groceries and other goods increased since the crisis began, making it impossible to maintain a six-foot distance from customers. She said masks and hand sanitizer are not available.

“I have no protection. All I have is a stupid blue vest,” she said. “I never signed up for this. I didn’t sign up to be a hero. I did not sign up to put my health on the line every day. I never joined the Army or freaking military. Now everyday I’m faced with this pandemic and I could die.”

Suggs said she was running a fever earlier that day and had called out from work.

“I pray to God it’s not what I’ve got right now, because I really don’t have any health coverage,” she said.

Walmart spokesman Charles Crowson said Walmart began restricting the number of people in its stores on April 4. But that policy wasn't uniform across its more than 4,000 stores for at least a week.

He said the company on April 10 began offering associates masks and gloves upon their request and conducting temperature screenings. It's not clear if those occur at all its stores.

Risks

The Trump administration recently eased safety regulations across agencies for essential employees, referred to by the White House as “critical infrastructure” workers.

The Occupational Safety and Health Administration announced last week that it would not require corporations to report the number of COVID-19 cases among employees.

And the Centers for Disease Control and Prevention last week issued new guidance stating that essential workers who say they were exposed to the virus can be required to work as long as they show no symptoms.

The chamber argues companies should not face lawsuits so long as they follow CDC guidance and state and local health department guidance — which usually mirrors the CDC’s — and if the company wasn’t grossly negligent. They argue companies should be indemnified regardless of whether the CDC guidance was strong enough to prevent employees from getting sick.

“I do think if the companies are following CDC guidance, and that’s the government’s official policy, that’s not something they should be liable for. They can't be at fault for following what the premier public health agency is recommending,” said Amesh A. Adalja, an infectious disease expert and senior scholar with the Johns Hopkins Center for Health Security.

But it concerns some epidemiologists, who cite emerging evidence that asymptomatic people or people with mild symptoms could be important “silent carriers.”

“When this is all over we’ll see disproportionate deaths in those professions that can’t stay home,” said Gregg Gonsalves, a Yale School of Medicine epidemiologist. “The reason we’re social distancing is to cut our social networks and our professional networks. But it’s very difficult to maintain a distance at a dense Amazon warehouse or your stop-and-shop grocery store.”

It also concerns labor experts, who say that while these lawsuits are rare, a safe harbor could disincentivize companies from sanitizing work stations, providing protective equipment like masks and enforcing social distancing.

“The chamber’s proposals are all about shielding companies from liability, which is a particularly dangerous thing to do during the pandemic. Our laws should incentivize protecting workers and consumers, and the fact that companies could be held accountable for negligence is absolutely crucial to protecting people and public health,” said Terri Gerstein, a Harvard Law School Labor and Worklife Program director.

The eased CDC guidance has worried workers' rights groups and unions, who say requiring asymptomatic potential carriers to work could expose millions of more people to COVID-19.

“The loosened guidelines are dangerous, and risk exposing other workers and the public to infection, with supposed mitigation measures that are far less effective in reducing the threat of spreading the virus,” said Bonnie Castillo, a director of National Nurses United, the largest nurses’ union in the U.S., in a statement.

They say they could exacerbate the pandemic’s disproportionate impact on low-income workers, who are often African American or Latino and already at a higher risk of serious illness from COVID-19.

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