*Updated May 26, 2020*

The Senate Judiciary Committee held a hearing on Tuesday, May 12^th titled, “Examining Liability During the COVID-19 Pandemic.” The hearing comes as governors nationwide are considering plans to reopen business activity in their states. Business owners, however, are concerned that they could face lawsuits if their customers or employees contract coronavirus in their facilities. Many are asking Congress to pass a law granting immunity from legal liability over infections in the workplace. Senate Majority Leader, Mitch McConnell (R-KY), has signaled support for the policy, saying on the Senate floor, “Our legislation is going to create a legal safe harbor for businesses, nonprofits, governments and workers and schools who are following public health guidelines to the best of their ability.” The Senator went so far as to say the issue is a “red line” for Senate Republicans before they consider another trillion-dollar package of economic and public health relief.

The Senate Judiciary hearing began with statements from the Committee Chairman, Senator Lindsey Graham (R-SC) and the Ranking Member, Senator Dianne Feinstein (D-CA). Senator Graham expressed support for liability immunity, saying that businesses needed assurances that they wouldn’t be hit with a wave of lawsuits upon reopening. Senator Feinstein argued that rather than issue liability immunity, the Occupational Safety and Health Administration (OSHA) should issue an enforceable rule outlining what safety precautions businesses must take. This became a running theme throughout the hearing, as Democrats argued that federal agency guidelines would provide businesses with protections from lawsuits, so long as they complied with safety instructions.

Senator Graham agreed that OSHA should provide a regulatory framework, and asked witnesses whether they supported federal agency guidelines and/or Congress passing a liability immunity law. The witness panel was composed of a business owner, two labor advocates, a law professor, a higher education advocate, and a tourism trade group representative. All six witnesses agreed that OSHA should issue an enforceable workplace safety rule, but the panel was split on a liability immunity law. Senator Graham made an appeal to compromise, suggesting that liability immunity could be passed in conjunction with federal regulations.

While OSHA has stated that businesses should follow Centers for Disease Control and Prevention (CDC) guidelines, the CDC guidelines have shifted over time, and the White House most recently declined to release CDC guidelines mapping out how businesses should reopen. CDC guidelines are just that: guidelines. They are not enforceable. OSHA has the capability to issue mandatory workplace safety rules, but it has so far declined to do so. If it did issue enforceable workplace safety rules, businesses could be sued for not following them, but questions would remain about liability for events before rules were released. For example, if OSHA released new rules today, but an employee contracted coronavirus in the workplace last week, the liability question is murky.

The legislative battle over liability has begun, with Rep. Vicky Hartzler (R-MO-4) and Rep. Michael Turner (R-OH-10) introducing separate pieces of legislation to protect churches, meatpackers, and other businesses with liability immunity. While the House Republican minority does not have the votes to advance the legislation without Democratic support, Hartzler’s and Turner’s legislation (H.R.6844, H.R.6883, H.R.6976) comes as President Trump has called for churches to reopen, in spite of some governors’ warnings.

O’Neill and Associates has experience dealing with liability policy in a crisis. Two weeks after 9/11, John Cahill, Vice Chairman of Federal Relations, flew to DC with senior members of the Massachusetts Port Authority and met with then Senators Ted Kennedy and John Kerry. The group presented the issue and importance of limiting the exposure risk to insurance liability for the Massachusetts Port Authority (Massport). The Port Authority of New York and New Jersey had suffered 84 deaths at their offices at World Trade Center, and Massport took the lead in ensuring that they too were covered from this anticipated liability that would be catastrophic to the airports. John Cahill worked with the Massachusetts and New York delegations to draft the indemnification legislation, and it was passed before the end of the year. O’Neill and Associates will continue to monitor liability policy as Congress considers new relief packages.