May 11, 2020

MSCI Calls For Liability Protections In Next COVID-19 Spending Bill

Questions—and anxiety—about worker safety and lawsuits has become a prominent issue as U.S. states have lifted stay at home orders and allowed more businesses to bring non-essential employees and operations back online. The law firm Kelley Drye has outlined the types of lawsuits employer could see, and some leaders in the U.S. Congress have said measures to protect businesses from liability must be part of federal lawmakers’ next COVID-19-related spending bill.

The Metals Service Center Institute (MSCI) agrees and last week, with the National Association of Manufacturers (NAM) and dozens of other trade associations, sent a letter to congressional leadership asking for federal liability protections that are “appropriately tailored and limited to the present emergency and a reasonable period of recovery.” Click here to read the letter.

NAM has outlined a plan to protect businesses that calls for legislation that:

  • Limits lawsuits in state and federal courts claiming damages, and enforcement actions claiming penalties, based on COVID-19 exposure from essential manufacturing operations to instances where the manufacturer had actual knowledge that an individual would be exposed to COVID-19 and acted with reckless indifference or conscious disregard as to whether they would contract it;
  • Requires cases based on workplace transmission theories to be pled with particularity and to meet a clear and convincing evidence standard;
  • Acknowledges the ever-evolving patchwork of available advice, industry practices, and state responses that combine to make identifying a clear standard of care nearly impossible; and
  • Providing employers with a safe harbor for collecting and exchanging critical information related to employees’ health status and for implementing reasonable measures like temperature checks to combat workplace transmission of COVID-19.

If MSCI members would like to correspond with their representatives in the U.S. House and Senate on this matter, they can use this NAM link to do so. NAM also has provided a list of instructions for contacting members of Congress and a list of points to make when talking directly to lawmakers or members of the staff. The U.S. Chamber of Commerce’s Institute for Legal Reform (ILR) also has outlined a plan for lawmakers to consider. It asks for legislation that protects:

  • Businesses that follow government health guidelines and standards unless they were grossly negligent or engaged in intentional misconduct;
  • Companies that make much-needed protective equipment to fight COVID-19, or donate them;
  • Frontline healthcare workers and facilities against medical liability lawsuits unless they were grossly negligent or engaged in intentional misconduct.
  • Companies from abusive securities lawsuits that are based on the drops in their share price due to the economic fallout from the coronavirus.

According to a new public opinion survey by the ISLR, the idea of providing liability protections is popular, with majorities of Republicans, Democrats, and Independents agreeing that employers must have protections from COVID-related lawsuits as they work to reopen. Click here for more information from ILR about this issue. Several U.S. states also have considered, or will consider, COVID-19 liability legislation. Click here to track those efforts.