Corporations using coronavirus excuse to get permanent immunity from workers’ lawsuits

Local residents stood outside the plant gate, cheered, and held thank you signs to greet employees of a Smithfield pork processing plant as they began their shift on May 20 in Sioux Falls, S.D. The workers have been sent back to the processing lines despite a high number of COVID-19 diagnoses and several deaths. Big business is now seeking to get permanent immunity from workers' lawsuits if they become ill. | Stephen Groves / AP

WASHINGTON—Big business, led by the U.S. Chamber of Commerce, which sent a glossy advocacy brochure to all senators, and the National Association of Manufacturers, is using the coronavirus pandemic crisis as a cover for its real goal: Protecting itself against all workers’ and consumers’ lawsuits on health and safety—all the time.

That doesn’t mean just lawsuits against corporate wrongdoers who deliberately fail to protect workers and customers against the virus, experts said at an American Constitution Society seminar on May 19.

It means liability against almost everything, a situation the panelists said would be even worse than when corporate interests ruled U.S. politics during the Gilded Age.

The business scheme also includes routing the few lawsuits against the worst wrongdoers away from state courts and into federal courts packed with anti-worker Donald Trump-named judges, the experts added.

Rebecca Dixon of the National Employment Law Project, Georgetown University’s Heidi Li Feldman, and public interest attorney Deepak Gupta spoke as the ideological and political fight heats up over whether firms that deliberately don’t protect their workers and customers against “community spread” of the virus can get away with it.

Senate Majority Leader Mitch McConnell, R-Ky., has a “red line in the sand.” He has an unequivocal condition for any new economic stimulus law: Preventing workers and consumers from suing if they catch the coronavirus on a firm’s premises, unless the workers and consumers can prove the company violated state and federal guidelines to prevent its spread.

McConnell’s plan “ is part of businesses’ pressure over time to avoid the law” and all lawsuits, Feldman said. Reading from the chamber’s brochure, she added the business groups “are also asking for immunity from other legal avenues” workers now can take to battle back against irresponsible bosses.

Gupta added the Association of American Retailers and the National Federation of Independent Business—a notorious part of the radical right—also back the lawsuit ban.

Workers, their advocates, and unions all oppose such a scheme and said so, forcefully, at a GOP-run Senate Judiciary Committee hearing the week before, where Dixon and United Food and Commercial Workers President Marc Perrone spoke out.

“UFCW supports measures to make workers safer and rejects calls for employer immunity, which would only exacerbate the current (coronavirus) crisis,” Perrone declared then. The virus turned meatpacking plants into increasingly hazardous employment, he said. UFCW’s 1.3 million members include both packinghouse workers and grocery workers.

The nation’s 1.5 million coronavirus cases and 90,000-plus dead include 35 dead meatpackers and 3,272 ill ones, and 60 dead grocery store workers and 4,157 ill ones, Perrone said—and that was a week before the ACS session.

The infamous Smithfield meatpacking plant in Sioux Falls, S.D., is now the nation’s single largest corporate virus hotspot, with at least two dead and at least 900—out of more than 5,000 workers total—sick. They got sick even though the UFCW local and the Sioux Falls AFL-CIO tried hard to stop the outbreak, there and in the city as a whole. Local right-wingers foiled them.

Perrone said that’s wrong. “The best way to keep our essential businesses up and running, and to reopen additional businesses, is to ensure that workers have the protections they need,” he said. Besides, if the food workers get ill, the national food chain grinds to a halt.

“Without these food workers doing their essential jobs, it is fair to state the crisis we all are enduring would quickly devolve into social chaos and panic. These food workers deserve not only our gratitude, but adequate protection and provision for their health, safety, and financial security.”

Dixon and Feldman warned at the ACS session that corporate interests want to take the ban on lawsuits further than the coronavirus emergency and have it cover far more instances and incidents than those involving “essential” workers at Smithfield and in other jobs and fields.

“Worker health is public health, and we’ve seen that even more” in the pandemic, Dixon, NELP’s executive director, said. “Worker rights to a safe and healthy workplace must come before profits. Far too many employers know what to do, but have not chosen to do it.”

Preserving the right to sue bosses who don’t protect you is particularly important for workers of color, migrants, and workers without unions, Dixon said. They’re the ones who are the most vulnerable, she explained.

“Employer failure to protect workers and…risk have been stratified by race and color,” she explained. Some “87% of U.S. occupations are racially segregated. Though all workers are at risk, Black, Latinx, and indigenous workers will be at greater risk.”

That’s in line with data already filtering in from those jurisdictions that keep track by race of which workers get sick—and die—from the coronavirus. African Americans are an estimated 70% of the cases in Chicago, and Cook County, which the city dominates, has the most ill people of any U.S. county: 63,690 as of 8 am May 19.

And the Navajo Nation, which stretches over the “Four Corners” area of New Mexico, Arizona, Utah, and Colorado, has 3,122 cases, but among 170,000 people, giving it the highest per capita illness rate in the U.S.

That segregation puts workers of color and low-income workers into the most-hazardous jobs, with the hazards hugely increasing due to the pandemic.

In theory, workers’ comp is supposed to protect workers, who give up their right to sue in return for immediate coverage of their medical costs and—sometimes—lost earnings or pain and suffering. In practice, Dixon said, workers’ comp often fails. And, while she did not say so, workers whom bosses misclassify as “independent contractors” don’t qualify for workers’ comp, because their bosses don’t pay in for them.

There’s one other way workers could be protected if they get sick on the job from the coronavirus, she added: If GOP President Donald Trump’s Occupational Safety and Health Administration forces firms to craft and implement anti-virus safety plans. It’s refused to do so, forcing the AFL-CIO to sue OSHA in federal court over the issue.

“If OSHA is not going to issue standards, states will have to step in,” said Dixon.

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CONTRIBUTOR

Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.