May 19, 2020

MSCI Argues For Business Liability Legislation

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. To help ease these concerns, U.S. Senate leaders are expected to introduce legislation during the week of May 18 that, if enacted, would protect businesses from lawsuits during the COVID-19 pandemic.

The Metals Service Center Institute (MSCI) signed a letter organized by the National Association of Manufacturers (NAM) that was sent to U.S. House and Senate leaders in early May. It also has joined one organized by the U.S. Chamber of Commerce (USCC), which will be sent before Memorial Day, supporting business liability protections.

MSCI encourages members companies to use this link from NAM to send a signed message of support to lawmakers. The 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 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.

The USCC’s Institute for Legal Reform (ILR) has released a report that explained how litigation, if unchecked, could hinder the U.S. economic recovery. The report noted the plaintiffs’ bar is expected to target or, in some cases, is already targeting exposure liability, product liability, medical malpractice, and securities litigation. The 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 public opinion survey, 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.

Several U.S. states also have considered, or will consider, COVID-19 liability legislation. Click here to track those efforts.


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