Republicans Seek Immunity for Employers From Lawsuits Related to Pandemic

Congressional leaders are squaring off over the next pandemic relief bill in a debate over whom Congress should step up to protect: front-line workers seeking more safeguards from the ravages of COVID-19 or beleaguered employers seeking relief from lawsuits.

Democrats want to enact an emergency standard meant to bolster access to protective gear for health care and other workers and to bar employers from retaliating against them for airing safety concerns.

Republicans seek immunity for employers from lawsuits related to the pandemic, an effort they say would give businesses the confidence to return to normal. The Senate is scheduled to reconvene later this month.

The debate reflects a deepening schism between the major political parties, with Democrats focused on protecting lives and Republicans focused on protecting livelihoods.

Democratic House Speaker Nancy Pelosi expressed frustration over efforts to pass an emergency worker-protection standard, which keeps running into GOP resistance.

“They’re saying ‘Let’s give immunity — no liability — for employers,’” Pelosi said. “We’re saying the best protection for the employer is to protect the workers.”

Nearly 98,000 health care workers have contracted the novel coronavirus, according to Centers for Disease Control and Prevention data that the agency acknowledges is an undercount. KHN and The Guardian have identified more than 780 who have died and have told the personal stories of 139 of them.

In May, the House passed a $3 trillion relief bill that would require the Occupational Safety and Health Administration to put in place an emergency standard that would call on employers to create a plan based, in part, on CDC or OSHA guidance to protect workers from COVID-19.

It would cover health care workers and also those “at occupational risk of exposure to COVID19.” The measure would allow workers to bring protective gear “if not provided by the employer.” Similar rules in place in California health care workers have come under fire for offering little added protection.

In action, the new measure would allow OSHA inspectors to request to review an employers’ plan and hold them accountable for following it, said David Michaels, former U.S. assistant secretary of Labor and OSHA administrator, who has called for such a standard. Federal guidance is currently optional, not required.

“Many employers want to be law-abiding,” Michaels said, “and they know they risk enforcement and possibly a monetary fine if they don’t attempt to do this.”

Top Democrats, including presumptive presidential nominee Joe Biden, have called for better worker protections, while GOP leaders have called for stronger employer protections.

Senate Majority Leader Mitch McConnell has insisted that the next pandemic relief bill include immunity for employers against coronavirus-related lawsuits.

“If we do another bill, it will have liability protections in it for doctors, for hospitals, for nurses, for businesses, for universities, for colleges,” McConnell said July 1. “Nobody knew how to deal with the coronavirus,” he said, and unless they’ve committed gross negligence or intentional harm, those parties should be protected from an “epidemic of lawsuits.”

He has proposed a five-year period of immunity from December 2019 through 2024. (McConnell’s office declined to comment for this story.)

Such a measure could derail lawsuits already filed by grieving family members such as Florence Dotson, the mother of 51-year-old certified nursing assistant Maurice Dotson, who died in April. Her son cared for nursing home residents with COVID-19 in Austin, Texas, and did not have proper personal protective equipment (PPE), her suit alleges. He later died of complications from the virus.

Another lawsuit alleges that an anonymous New York nurse requested but was denied proper PPE when she was assigned to care for a patient in intensive care with COVID-19 symptoms but who was tested for the virus only after death. The nurse, who contracted COVID-19 shortly after, is seeking $1 million in damages.

U.S. workers in every industry have filed more than 13,300 COVID-related complaints with OSHA, records show, demonstrating widespread concern over their lack of protection at work. Twenty-three complaints reference a fear of retaliation, including among hospital workers who say they were pressured to work while sick.

The agency has closed investigations into those complaints but is investigating 6,600 more open complaints. OSHA has so far issued one citation against an employer, a spokesperson confirmed.

Employers are also struggling, evidenced by layoffs and an 11% unemployment rate, which the Congressional Budget Office projects will hit 16% in the coming weeks.

States have taken some matters in their own hands during months of federal inaction. At least 25 states have created some degree of legal immunity for doctors or facilities, through new laws or executive orders, according to the National Conference of State Legislatures.

Officials in Virginia and Oregon have taken steps to enact their own heightened worker-protection rules related to the virus.

The effort to pass an OSHA rule to protect workers from infectious diseases dates to 2010, when regulators saw the need to better protect health care workers after the H1N1 flu pandemic.

Michaels, the former OSHA director under President Barack Obama, said the effort has stalled out under the Trump administration. Trump administration OSHA officials have defended their track record, saying adequate rules are in place to protect workers.

But a similar push succeeded in California in 2009. State officials passed a plan requiring health care employers to create a plan to protect health care workers from airborne viruses.

The California measure went further, requiring hospitals and nursing homes to stockpile or be prepared to supply workers with an N95 respirator — or an even more protective device — if treating patients with a virus like COVID-19.

Workplace safety experts in California, though, said it hasn’t worked as intended.

As more than 17,600 health care workers have become sick and 99 have died in the state, it’s become apparent that health care employers did not have plans in place, said Stephen Knight, executive director of Worksafe, a nonprofit focused on workplace safety.

“This was just a massive missed opportunity and one that cost people their lives,” Knight said. “People are just dying … with frightening regularity.”

California nurses who died after caring for COVID patients without an N95 respirator include Sandra Oldfield, 52, who wore a less-protective surgical mask while caring for a patient who wasn’t initially thought to have the virus.

A complaint to OSHA about a lack of N95 respirators that preceded her death put her hospital, Kaiser Permanente Fresno Medical Center, in violation of the state’s standard, the state labor department confirmed.

However, alternative guidance is now in place because of global PPE shortages, according to the California Department of Industrial Relations. Kaiser Permanente, which is not affiliated with KHN, confirmed that the patient was not initially thought to have COVID-19 and that the company has followed state, local and CDC guidance on patient screening and use of PPE.

Hospital officials, who have come out against a national OSHA standard, said the plans that were in place did not account for the scope of the current pandemic and global supply chain breakdown.

“It is not for a lack of caring or trying to keep our workers safe,” said Gail Blanchard-Saiger, vice president for labor and employment with the California Hospital Association.

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.