Who Gets Protected?

Who Gets Protected?

Across the country, state governments are passing legislation that grants companies immunity from any liability for their failure to protect workers during the pandemic.

The COVID-19 crisis forced us to rethink the ways in which our public policies protect us against both health and economic risks. The underlying logic of the CARES Act, for example, was based on the assumption that sharing public spaces—especially workplaces—posed a grave threat to the public health. Its benefits—including a limited program of paid leave and a relatively generous expansion of unemployment insurance—were designed to make not working and sheltering in place possible.

That instinct was right, but the law’s execution was dismally flawed. State unemployment systems could not begin to manage the avalanche of claims. The virus flourished in settings—most notably in meatpacking plants—that ploughed ahead as “essential” businesses. And states impatient to open up again did everything they could to discourage workers from accessing the new federal benefits—a point Iowa Workforce Development Director Beth Townsend all but conceded in testimony before Congress last week.

In that rush to reopen, there is nothing more telling—and damning—than the contrast between the harsh neglect of basic worker safety and the slavish deference to business interests on the other. Throughout the pandemic, states have done perilously little to protect workers, their families, and their communities. Guidelines developed by both the Centers for Disease Control and the Occupational Health and Safety Administration (OSHA) define workplace safety under COVID-19 quite clearly. But there is nothing in state or federal law that compels employers to follow these guidelines, and there’s ample evidence that many are not.

Consider Iowa, a state ravaged by local outbreaks in each county with a large packing plant. Even in the midst of local outbreaks, county health directors lacked the authority to shut down production. “They just don’t get it,” the Tama County emergency management coordinator complained during an outbreak at the local National Beef plant. “They will keep going until all of their employees have this virus. They would rather risk their employees’ health and keep their production going.” Iowa Governor Kim Reynolds coldly said as much in late May: “Our recovery is contingent on our ability to protect both the lives and the livelihoods of Iowans. We can’t prioritize one over the other.”

Those priorities, in Iowa and elsewhere, came into sharper focus this week. As truncated legislative sessions scrambled to address (or avoid) the damage wrought by the virus, one heard barely a whisper of concern for health and economic insecurity facing working families. But, prodded by the Chamber of Commerce and the American Legislative Exchange Council, legislators have rushed to address the insecurity of employers by offering up sweeping immunity from COVID-related claims coming from workers or consumers. Corporate immunity laws—long a priority for business conservatives who see rapacious trial lawyers lurking around every corner—have passed in ten states, five of which are fully controlled by Republicans, and they are on the docket in seven others.

Each of these bills follows a similar playbook. They dramatically raise the threshold for worker or consumer claims. Iowa’s COVID-19 Response and Back to Business Limited Liability Act requires that any claims of exposure to the virus meet a standard of “reckless disregard” or “actual malice”; a proposed bill in Arizona narrows liability to instances of “gross negligence.” Then, the legislation calibrates business liability to hazy or undefined regulatory standards. The Oklahoma bill, for example, holds that a

person who conducts business in this state shall not be liable in a civil action claiming an injury from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care of the person or agent was in compliance or consistent with federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time of the alleged exposure. If two or more sources of guidance are applicable to the conduct or risk at the time of the alleged exposure, the person or agent shall not be liable if the conduct is consistent with any applicable guidance.

This is a regulatory sleight of hand. Because COVID-specific workplace safety guidelines are advisory and unenforceable, the question of “substantial compliance” is but a useful illusion. Employers are off the hook if their conduct is “consistent with any applicable guidance.” And the fog patch of guidance—ranging from tepid suggestions from OSHA and their state counterparts to the “personal responsibility” mantra in the back-to-business states—creates numerous opportunities to avoid liability.

At a time of such peril and uncertainty, this is a remarkable expression of legislative priorities. It is a solution in search of a problem; there has been no stampede of frivolous damage claims. And it ignores the more obvious and equitable tack, which is to protect the workers in the first place and allow them to refuse work (and draw unemployment benefits) if that protection is not sufficient. “Everybody wins when businesses follow clear, science-based guidelines to protect health and safety,” as the New York Times editorial board put it recently. “Workers and customers are less likely to get exposed to the virus, and businesses are less likely to get exposed to litigation.” But, in the absence of such guidelines, the strategy instead is a regulatory race to the bottom—and immunity from any such legal exposure.

Our public policies should be assessed by who they put at risk and who they reward, by who they protect and who they don’t. The blanket immunity offered by these bills, alongside our abject and continuing failure to offer any meaningful protection for workers, shows quite clearly what the current priorities are.

Colin Gordon is a professor of history at the University of Iowa. He is the author of, most recently, Growing Apart: A Political History of American Inequality and Citizen Brown: Race, Democracy, and Inequality in the St. Louis Suburbs.