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GOP Virus Plan to Shield Employers From Lawsuits, Probes (1)

July 17, 2020, 6:10 PM; Updated: July 17, 2020, 7:22 PM

Employers who follow public-health guidelines would be protected from federal labor and employment laws and agency investigations if a worker is exposed to the novel coronavirus in the workplace, according to a draft summary of a legislative proposal Senate Majority Leader Mitch McConnell’s (R-Ky.) office is developing.

The proposal Senate GOP leaders are drafting would protect “employers from liability and from agency investigation under federal labor and employment laws for actions taken to comply with stay-at-home orders and other public health guidance,” according to the draft. The document details elements of liability measures that are being considered as part of the larger virus-relief bill Senate Republicans plan to release next week.

Businesses would lose their legal shield only if they’ve failed to make reasonable efforts to adhere to applicable public-health guidelines and they committed an act of “gross negligence” or “intentional misconduct,” according to the document.

The proposal also would give employers protection from liability for injuries arising from workplace coronavirus testing, according to the summary. Representatives for McConnell’s office didn’t respond to emails and calls requesting comment. Provisions detailed in the summary could change as Senate Republicans draft the bill with input from the Trump administration.

The GOP proposal in the works also would give businesses new flexibility to comply with the Worker Adjustment and Retraining Notification Act, a labor law that requires companies to give workers at least 60 days’ notice before plant closures or mass layoffs lasting more than six months. Uncertainty about how this law applies to sudden coronavirus-related shutdowns has been a major concern for employers and forced companies to brace for litigation alleging they failed to provide laid-off workers with proper notice.

The draft summary addresses another top business-lobby request, stating that corporations that offer “training, PPE, or other assistance” to independent contractors or franchisees would not assume liability as the employer of the contractors’ or franchisee’s employees. Such language would be subject to strong opposition from Democrats and unions, who have argued long before the pandemic that employers should be held responsible for workplace conditions at the subcontractors and franchise companies with whom they affiliate.

Republican leaders also want to shield medical workers and health facilities from medical liability claims, according to the summary. There also would be an exclusive federal cause of action for medical liability claims.

McConnell and a tight circle of Republican senators, including John Cornyn (R-Texas), have spent weeks drafting legislation that would give employers and businesses broad protections against lawsuits from workers or consumers claiming they contracted coronavirus at the workplace or place of business. Republican lawmakers and the business community consider liability protections to be an essential part of the next virus-relief law Congress will negotiate, but Democrats largely oppose such protections.

Release of Senate Republicans’ larger proposal next week will trigger the start of formal negotiations with Democrats over the next relief bill.

The brief summary of GOP leaders’ plans circulated on Capitol Hill after months of active lobbying from business groups for a broad shield giving companies the confidence to reopen with reduced risk of litigation from workers and customers. The U.S. Chamber of Commerce outlined their proposal Thursday for the next phase of virus relief legislation. The Chamber’s list included some of the same details in McConnell’s summary, such as a safe harbor for employers to assist independent contractors and franchisees and relief from WARN Act liability.

(Updated with additional reporting throughout.)

To contact the reporters on this story: Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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