Unions worry Congress is one step closer to a liability shield

Labor unions are growing increasingly concerned about GOP efforts to implement a coronavirus liability shield for businesses after Speaker Nancy Pelosi (D-Calif.) said she has no red lines on the next COVID-19 relief bill.

Pelosi indicated this week she is open to negotiations with Senate Republicans on the House-passed $3 trillion aid package, which doesn’t include any provisions or restrictions on potential liability protections.

Senate Majority Leader Mitch McConnell (R-Ky.) has insisted that any coronavirus relief legislation that contains aid for state governments must be accompanied by a liability shield for employers, a stance backed by both the White House and pro-business lobbying groups.

Labor unions, however, have stressed there is no room for negotiation. 

“After experiencing eight workers die and more than 300 test positive for COVID at JBS Greeley in Colorado, it’s clear companies are responsible to provide a safe, healthy work environment for its employees. If they fail to do so, laws must hold them accountable for those failures,” said Kim Cordova, president of United Food and Commercial Workers Local 7, which represents 22,000 workers, including those at the JBS meatpacking plant in Greeley, Colo.

“Any attempt to shield companies from liability is a potential death sentence for front-line essential workers — putting all Americans at risk in the long term,” she added.

Progressive groups also argue that Democrats should not compromise on this issue.

“Granting corporations any kind of immunity in this moment is dangerous to both workers and customers. Regular people need legal recourse if they are exposed to dangerous situations that could make them ill,” said Lisa Gilbert, vice president of legislative affairs at Public Citizen.

Despite those arguments, Pelosi has indicated she is open to negotiation on the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, the measure passed by the House on Friday.

“Well, we have no red lines, but the fact is the best protection for our workers and our employers is to follow very good OSHA mandatory guidelines, and we have that in our bill,” Pelosi said Sunday in an interview with CBS, referring to the Labor Department’s Occupational Safety and Health Administration.

The House-passed legislation would require OSHA set up new protocols for workplace safety.

“That protects workers, protects their lives, as well as protects the employer if they follow the guidelines,” Pelosi said.

But some labor experts argue OSHA hasn’t exactly been a partner to unions.

Kate Bronfenbrenner, director of labor education research at Cornell University, said Congress relying on OSHA standards to protect workers will be disappointing for unions.

“Labor would not be satisfied with Pelosi’s recommendation to simply rely on OSHA, because OSHA has done everything possible to avoid enforcement or an investigation of COVID-19 problems in the workplace,” she said.

OSHA did not immediately respond to a request for comment.

The AFL-CIO on Monday filed a petition asking the D.C. Circuit Court of Appeals to force OSHA to implement an emergency temporary standard that would offer stronger protection for workers against the coronavirus as states begin to reopen.

Some of Pelosi’s colleagues in the House are also worried about Congress passing a liability shield.

A House Education and Labor Committee aide said Chairman Bobby Scott (D-Va.) “would be skeptical of any proposal to offer businesses blanket immunity from legal liability.”

“As workers face unprecedented risks to their health and economic security, we should not be eroding our nation’s civil rights, workplace safety, and employment laws. Workers’ safety is not a bargaining chip,” the aide added.

Ken Jacobs, chair of the UC Berkeley Labor Center, said Pelosi is in a “very difficult situation.”

“There will be deep concern in labor on anything that lets employers off the hook on health and safety,” he said. “We have already seen in a number of cases — both in the nursing home industry and in the meatpacking industry — what appears to be real negligence on the part of employers. If they are free from any liability from their actions at the same time that workers are forced back to work … that is a very dangerous formula.”

Judy Conti, National Employment Law Project government affairs director, expressed confidence in Pelosi’s stance on a liability shield.

“I’m confident that Speaker Pelosi understands how unconscionable the business community requests for immunity are. I take her statement simply to mean that she’s not going to be holding overall negotiations hostage over any one particular issue, as is only appropriate in a time of such crisis and when more congressional action is needed immediately,” Conti said.

A senior House Democratic aide said Pelosi “is clearly positioning herself as open to negotiations. However, there is widespread Democratic opposition to doing anything on liability that would undermine worker safety in the middle of a pandemic.”

Less than a month ago, Pelosi took a stronger position against a liability shield.

“At the time of this coronavirus challenge, especially now, we have every reason to protect our workers and our patients in all of this,” she said on April 29. “So we would not be inclined to be supporting any immunity from liability.”

Not all unions say Pelosi should be the focus of attention here. The Communications Workers of America (CWA) put the blame on McConnell for drawing a red line with his insistence on having a liability shield.

“It’s unconscionable for Mitch McConnell to hold funding for state and local public services, premium pay for essential workers and improved paid leave and unemployment benefits hostage to allowing corporations to avoid responsibility for maintaining safe workplaces,” said Beth Allen, a spokeswoman for the CWA, who also voiced support for the OSHA provision in the HEROES Act.

But McConnell has some powerful allies in his corner, namely the White House and the U.S. Chamber of Commerce, the powerful pro-business lobbying group, as well as industry groups that represent restaurants and retailers.

On Wednesday, the Chamber and similar groups at the state level called on Congress for “timely, temporary and targeted liability relief legislation.”

The White House has also been supportive of lawsuit protections for employers.

As action turns to the Senate, where some Democrats are floating a possible lawsuit exemption for small businesses, the odds of a liability shield of some kind are increasing.

“Could I imagine some kind of safe harbor that people could agree to? Yes. Could you imagine that with this administration and their record on labor? It makes it harder because they don’t have a history of interpreting laws in a way that is supportive and friendly to workers,” Jacobs said.