Killing Workers (and Customers) – With No Liability

Photograph by Nathaniel St. Clair

Republicans want to help businesses kill workers. They want to force employees to return to Covid-19 hotspots, like slaughterhouses, by depriving them of unemployment checks if they don’t clock in. In addition, Senate Majority leader Mitch McConnell wants to give these businesses and others, like nursing homes, legal immunity for deliberately exposing workers to a deadly plague. On May 26, he announced such legislation. Make no mistake: McConnell’s liability protection is a license to kill. He’s gone from being the gravedigger of democracy to just being a gravedigger.

This problem has also arisen with hospitals. From the pandemic’s start, many nurses and support staff lacked proper Covid-19 protective gear. When they brought their own, some were fired. This opened the hospitals to lawsuits – for instance, wrongful death suits from the families of medical workers inadequately protected and consequently killed by the disease. Indeed some medical workers, fired for protesting the lack of gear, are suing their hospitals. As National Nurses United executive director Bonnie Castillo explained. “Nurses signed on to take care of their patients. They did not sign up to sacrifice their lives on the front lines of the Covid-19 pandemic.” But that’s exactly what inadequate gear has made them do.

As the New York Times observed in a mid-May editorial on McConnell’s liability protection push, for McConnell the biggest obstacle to re-opening the economy “is not a deadly disease but rapacious trial lawyers” and a tsunami of wrongful death cases, which the Times observes has not and probably will not materialize. But that doesn’t matter for McConnell. He has doubtless heard from corporate donors and supporters chary of their legal exposure and who therefore may hesitate to really put the screws to their employees. McConnell’s bill will make them feel comfortable doing that. Risk-free killing on the job – that’s the senate majority leader’s goal.

This liability bill – which may encounter constitutional problems – would also protect businesses from injured customers. But what do business and its congressional shills think those customers will do when they learn that their baristas, say, work in Covid-19 hotspots? They’ll stay away, and business’ insistence that it be protected from their lawsuits is just the kind of lousy advertising that will continue to keep customers away.

Currently employers have an incentive to notify workers if someone on the job tests positive for Covid-19. That motivation will disappear entirely if McConnell guts liability. In fact, anecdotal evidence shows that employers are not even doing such a good job now, even with this incentive. News reports abound of hospitals that failed to notify staff when a co-worker had the virus. Meanwhile, for those employers who do take their responsibility seriously, McConnell’s bill undercuts them. Its message is: don’t be a chump and worry about Covid-19; you’re in the clear. It can rampage through your business, but there’s nothing your employees or customers can do about it. They can’t touch you.

But, some say, adopt new standards and regulations which, if a business complies, could serve to eliminate its liability. A win/win – no? No. Business hates regulations. How long after enactment until a right-wing president eviscerates the regs? Then corporations will have the liability shield and none of the pesky regulations that justified it. If you think this outcome unlikely – you haven’t been paying attention to what business has done to regulatory oversight, consistently, since the Reagan regime.

Texas, Alabama, Wisconsin, South Dakota and other states all registered jumps in Covid-19 cases after they reopened. Will some of these people sue the businesses they patronized? Maybe. Will some of those suits be justified? Could be. But so far, this tidal wave of suits has not surged; instead a second wave of infections has begun to swell. The vast majority of those who sicken and die will never sue anybody, which is why these feckless governors felt so comfortable re-opening their states without even reducing the numbers of new cases first. Incidentally and unfortunately, infections from crowded protests will enlarge this second wave, but that doesn’t affect business, so you won’t see McConnell currying anybody’s favor regarding it.

When McConnell first announced his liability ban, House leader Nancy Peolsi came out against it. Since then, the house completed a new $3 trillion stimulus package, which now lingers in the senate and regarding which Pelosi said she has no red lines, possibly meaning that she is willing to negotiate on liability. Let’s hope not. Her argument that the best protection for business is to follow OSHA regs may not be welcome to senate Republicans, many of whom doubtless regard that agency as a font of unwanted regulation, but this argument should not be horse-traded away. Liability protection rewards bad, irresponsible behavior and will increase Covid-19 deaths. A day in court is one of the few ways ordinary citizens – workers and customers – can exercise their right not to be harmed. Hopefully the House will not forget that.

Eve Ottenberg is a novelist and journalist. Her latest book is Lizard People. She can be reached at her website.