Why Republicans Dumped Their Demand for Better Covid-19 Legal responsibility Protections for Enterprise
As lawmakers near an agreement on a new round of economic activity, it is worth considering an important business benefit that has not been curtailed: improved liability protection.
For months, Senate majority leader Mitch McConnell (R-KY) described the increased liability protection for companies from Covid-19-related claims as a “red line problem”. Whether an invoice contained increased liability protection became a kind of litmus test.
The legislation proposed by Republicans in March – the Heals Act – offered to raise the bar on liability related to Covid-19. Instead of requiring plaintiffs to demonstrate that a company did not take reasonable care to prevent injury, illness or death on their premises – the current standard of liability – they would need to show that a company acted with gross negligence or willful misconduct.
At the time, that bill was not garnering enough steam to even stand a draft among Republicans. Still, McConnell, who as the majority leader controls the legislative mechanism, wouldn’t budge. “No bill will pass the Senate without liability cover for everyone associated with the coronavirus,” McConnell reportedly told reporters from Kentucky in July. “Nobody should have to face an epidemic of post-pandemic legal proceedings that we have already had with the coronavirus.”
Democrats had their own line in the sand: aid to states and local governments. A proposal for a new Covid-19 relief bill, proposed by a non-partisan, bicameral group of lawmakers and favored by House Spokeswoman Nancy Pelosi, D-Calif., Included $ 160 billion for those constituencies. This bill also called for a temporary suspension of Covid-19-related lawsuits at the state or federal level.
Then, sometime last week, McConnell himself called for improved liability protection to be removed from the draft proposal – along with aid to states. “I suggested we put the remaining sticking points aside and say goodbye to whatever we can agree on. They say ‘no’,” McConnell tweeted on December 9th.
So what has changed? David Leonhardt of the New York Times, who wrote for The Morning newsletter on December 17, writes that the change of heart is a product of Senate Republicans who break tradition and, at least tacitly, threaten a coup.
The real reason probably has more to do with the fact that more than 30 states have already introduced some form of enhanced liability protection – either through legislation or executive ordinances – since the coronavirus first hit American shores.
For example, in Louisiana, a law passed in June limits liability for restaurants that comply with guidelines for serving take-away meals during the pandemic, unless the plaintiff can provide clear and convincing evidence of gross negligence or willful misconduct or will Submit violation of government guidelines. Also in June, the Arkansas governor issued an executive order to protect businesses that are open or staying open during the pandemic from civil liability for damage or injury from exposure to Covid-19 at work. Protection does not include willful, reckless, or willful misconduct – in other words, a company that complies with government health and safety guidelines would be given a safe haven.
The list includes states that have taken fewer protective measures, says Neil Bradley, chief policy officer of the U.S. Chamber of Commerce. “It’s pretty different,” he says, noting that states like New York and Massachusetts have safeguards in place for health care providers or health professionals and volunteers – that is, doctors and nurses who show up and volunteer.
But getting states to rally is clearly the plan. During a December 8 press event at which lawmakers including Senator Mitt Romney (R-UT) unveiled the temporary liability relief proposal, Romney noted that the efforts would likely give states enough time to take their own protection . “Liability protection is critical,” said Romney. “If I were a CEO, I would never think of bringing a new company into a state that has no liability cover for Covid.”