“There is no playbook. There are no established best practices. This uncertainty is impacting our decisions.”
Senate Majority Leader Mitch McConnell
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WASHINGTON — As states reopen, non-essential workers across the country can be summoned back to work, but there are no federal coronavirus rules protecting them and their ability to sue over unsafe work conditions could soon be severely limited.
The Trump administration has not enacted any health and safety rules to govern how workplaces must keep employees safe during the coronavirus epidemic. There are no federal requirements to provide masks or enforce social distancing when possible. At the same time, Congress is debating whether to pass sweeping liability reforms to shield employers from coronavirus-related lawsuits.
That combination could result in a legal landscape where employers are under no obligation to adapt to coronavirus, yet workers and customers are unable to sue for changes or if they get sick.
Senate Majority Leader Mitch McConnell has made passing a liability shield his top coronavirus priority, insisting it be included in any aid bill Congress passes next.
An immunity shield would mean workers couldn’t sue their employer over allegations that they contracted COVID-19 due to unsafe working conditions, and customers couldn’t sue a business they believe caused them to be infected.
Employers ranging from hospital groups to the owner of Burger King have made a hard push for legal immunity as the country reopens. But the driving force has been the US Chamber of Commerce.
During a Thursday conference call, Chamber executives called for Congress to pass a liability shield and opposed any new health and safety regulations on businesses.
The White House has so far avoided taking a firm oversight role. OSHA, the Occupational Safety and Health Administration has released only guidance — non-binding advice that is unenforceable — rather than enforceable regulations. The White House’s “Opening Up America Again” plan punts workplace health and safety to a state responsibility.
OSHA falls under the purview of Labor Secretary Eugene Scalia. Scalia was formerly a corporate lawyer at the Washington office of Gibson, Dunn & Crutcher, where he specialized in overturning workplace protections. Scalia has lobbied on behalf of the Chamber and represented the group several times over the years.
In 2001 President George W. Bush tried to appoint Scalia as Labor Department solicitor, but he was initially blocked in the Senate because of his perceived hostility toward worker protections.
He had led a US Chamber of Commerce legal campaign against Clinton-era workplace safety design rules, mocking the underlying science as “quackery.” He was later appointed through a rarely-used process that circumvents the Senate. (And, yes, he’s the son of late Supreme Court Justice Antonin Scalia.)
WASHINGTON, DC – Labor Secretary Eugene Scalia answers a question during the daily coronavirus briefing as White House coronavirus coordinator Deborah Birx looks on.
Over the past decade he cemented himself as a star attorney for his successful lawsuits to overturn and weaken Dodd-Frank provisions. He has also been a key figure in opposing whistleblower protection laws as he represented employers fighting OSHA’s Whistleblower Protection Program.
“This is a pro-business agenda. He’s an essential part of opposing and undercutting the whistleblower laws,” said Lynne Bernabei, an employment lawyer at Bernabei & Kabat, PLLC.
The Department of Labor did not respond to a request for comment as of deadline.
The lack of federal standards only increases the uncertainty for businesses looking to reopen. Employers that follow federal guidelines can offer a defense of regulatory compliance if they are sued.
Last week at the Senate Judiciary Committee meeting, witnesses told Congress that no one knows what the best practices are and without them, workplaces are fearful to reopen.
“There is no playbook. There are no established best practices. This uncertainty is impacting our decisions,” Texas Christian University counsel Leroy Tiner Jr. said, testifying on behalf of the American Council on Education, a group that represents hundreds of colleges and universities.
Senate Judiciary Committee chairman Lindsey Graham, a Republican, seemed to agree.
“The big whole in the puzzle right now is the standards. We have workplace safety rules for how you do business in a meatpacking plant, but there’s no rules about how to protect yourself from the coronavirus in a uniform way,” Graham said.
But Republican senators have been loath to criticize the Trump administration’s handling of the coronavirus outbreak. Graham’s office did not respond to a request for comment on whether he supported new OSHA regulations.
The Chamber of Commerce argues that passing coronavirus regulations is not feasible. Executives say that factoring in the public notice and comment period, plus any challenges, the process would take months if not years.
“In that kind of environment, the idea that you could write a regulation or even multiple regulations that would recognize the differences in all 8 million workplaces, it’s just not practically possible,” said the Chamber’s chief policy officer Neil Bradley.
Under normal circumstances, rulemaking is a months-long process. But Bernabei argued there is precedent for federal agencies using their emergency powers — having “good cause” to waive the notice period in the public interest — to fast-track new rules.
In Congress, liability reforms are shaping up to be the defining battle of the next round of coronavirus aid. Republicans say a liability shield for employers is necessary to prevent a “lawsuit lottery” where businesses are brought to ruin by an avalanche of false claims.
On the Senate floor, Majority Whip John Cornyn raised the spectre of a person entering a newly reopened restaurant and then suing a week later, after testing positive for COVID-19, despite not knowing when they were infected. “We’re already seeing lawsuits piling up,” said Cornyn.
One Senate Democratic aide called the policy “a line in the sand” and “a complete non-starter” in coronavirus negotiations. Labor, consumer advocacy and progressive groups say they are building a campaign to fight the proposal, arguing it will deprive workers of legal recourse if they are put in reckless or unsafe working conditions.
A database tracking coronavirus-related lawsuits maintained by the law firm Hunton Andrew Kurth shows that if there is going to be a tidal wave of workplace safety lawsuits, it has not started yet. Of the almost 1,300 recorded coronavirus-related lawsuits filed in the country so far, just 26 involve exposure to the virus at work. The bulk of the lawsuits involve prisoners suing to be released, people or businesses suing insurance companies, or civil rights suits that challenge closure orders.
Sen. Patty Murray, the powerful ranking member of the Senate Health Committee and a key player in negotiations, is coming out hard against liability reforms.
“We absolutely cannot use a pandemic as an excuse to rollback protections for workers,” she said in a statement to BuzzFeed News. “Federal labor laws are intended to protect workers at all times, but particularly, during times of heightened health and safety risk.”
But Democrats have $3 trillion in coronavirus aid policies they want to get done soon. To pass anything through Congress you have to go through McConnell, who has shown a willingness to wait until he gets what he wants.
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Paul McLeod is a politics reporter for BuzzFeed News and is based in Washington, DC.
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