The Republican Liability Immunity Bill: A Massive Corporate Giveaway

Since late April, Senate Majority Leader Mitch McConnell (R-KY) has made clear that his number one priority amidst this public health and economic crisis is providing broad liability immunity for corporations. He kept his proposal secret for three months. But now, we finally have the specifics.

Two weeks ago, Senate Republicans introduced their corporate immunity bill, a 65-page bill they call the “SAFE TO WORK Act.” It is the most sweeping corporate immunity bill ever proposed. The bill would override state laws, allow businesses to cut corners, jeopardize the safety of frontline workers and families, and risk further spread of the virus.

The bill would do nothing to improve workplace safety or give businesses incentive to take proper precautions to reduce COVID transmission. To the contrary, this bill treats workers and victims as the problem and sets high hurdles that would prevent even meritorious COVID-related claims from having their day in court.

First, the bill would federally preempt the right of workers and victims to bring cases in state court to seek accountability for COVID-related harms, and it would supplant state laws that require businesses to act with reasonable care.

Then, it would say that businesses are shielded from liability for five years unless the worker or victim proves the business didn’t try to comply with even the weakest available safety guideline and also was grossly negligent. A corporation could be shielded from liability even if it made zero effort to follow CDC safety guidelines, so long as it claimed it tried to comply with a local ordinance. And by setting the threshold at gross negligence, the McConnell bill would immunize businesses for conduct that meets the standards of negligence or even recklessness under current state law.

Senator McConnell claims his bill is aimed only at frivolous lawsuits. But it would also wipe out legitimate cases by workers or sick Americans, putting them through a gauntlet of restrictive hurdles like heightened pleading requirements, a higher burden of proof, and limits on discovery, which would make it nearly impossible for them to even file a claim, let alone prevail.

Also, rather than setting a strong, clear, enforceable federal standard of care, such as an Occupational Safety and Health Administration (OSHA) standard that would provide both safety and predictability, the bill would go the other direction and actually shield businesses from enforcement proceedings under laws like the Occupational Safety and Health Act, the Fair Labor Standards Act, the Americans with Disabilities Act, and other health and safety laws.

The bill is entirely one-sided in favor of corporations. A large percentage of the coronavirus-related lawsuits that have been filed so far involve businesses suing other businesses or insurance companies. But the McConnell bill doesn’t stop those suits; it only cuts off the rights of workers and people who get sick. And the bill even allows corporations and Attorney General Bill Barr to sue workers for bringing a claim for COVID infection if the employer deems it meritless.

Republicans have still not made the case for why federal liability immunity is even necessary. There has been no wave of worker or victim lawsuits that justifies broad grants of immunity. And there is no need for the federal government to step in and override state liability laws, especially after the federal government has been deferring to states on nearly every other aspect of the COVID response. If states need to adjust their liability laws, they can do so — and 28 states have done that already during this pandemic.

The fact that Senate Republicans have proposed five years of liability immunity for corporations and just a few months of watered-down assistance for workers and families shows where their priorities lie. The American people are not fooled by this, and recent polling shows broad opposition to corporate immunity.

The Republican immunity bill is a massive corporate giveaway, and it will do nothing to make Americans safer or help reduce the spread of the virus. No wonder they kept it secret for so long.