McConnell proposal would abandon sick workers

Senate Majority Leader Mitch McConnell (R-Ky.) has insisted that he will block any further COVID-19 relief legislation without a provision that immunizes employers from liability for any sickness or death their workers suffer when they become infected on the job. He and President Trump insist that this will make a significant difference in getting the economy back on track.

Precedent certainly exists for removing classes of harms from the private tort litigation system, and sometimes crafting other systems to respond to injuries is socially beneficial. Sen. McConnell’s proposal, however, does not fit this pattern at all.

Far from developing another way to help sick workers and their families, he would simply bar the courthouse door and leave them with no recourse.

Enacting this proposal would fuel a pandemic already spiraling out of control. It would seriously exacerbate income inequality and racial injustice. And, ironically, it would undermine the economic recovery.

We have private tort damages suits for two primary reasons: to compensate the injured and to deter those who cause harm. If my rotten front steps collapsed when you came to visit, I should pay for your injuries. I had much more ability to repair them or warn you — and holding me liable for your injuries may give me and people like me a better incentive to properly maintain our steps.

Both functions of a lawsuit, of course, could be handled in other ways. The government, or an insurance policy, could compensate the injured. And government agencies, such as the Occupational Safety and Health Administration, the Environmental Protection Agency, local building inspectors, or professional licensing boards, can insist on safer practices that reduce the risk of harm.

Indeed, within our tort litigation system, insurance companies can contribute to both these functions, reducing both injuries and litigation. Insurance helps ensure that policyholders have the funds to compensate those that they injured — and by raising premiums or cancelling coverage deters those who engage in excessively risky behavior. This only works, however, because of the possibility of a lawsuit:  businesses that know nobody can make them pay for harms they cause have no need of insurance.

Usually, when we have reduced or eliminated the possibility of injured people bringing lawsuits for their injuries, we have done it because we have found other, better ways to compensate harms and deter risky behavior.

For example, most states have some version of no-fault car insurance. Each motorist is required to buy insurance that will pay for her or his own injuries in a crash so that they do not need to file a lawsuit against other drivers. Because the same kinds of dangerous driving that threatens other motorists also can harm the bad driver, insurance companies have incentives to raise bad drivers’ rates to encourage them to improve.

We set up compensation funds for those injured by childhood vaccines and by the 9-11 terrorist attacks. In those cases, we concluded that the injuries were real and needed compensation, but no useful purpose was served by litigating fault. Vaccine manufacture is already subject to intense government safety regulation, and the 9-11 attacks were unique events difficult to anticipate or resist.

Most relevant to the McConnell proposal, states’ workers’ compensation systems largely replaced suits for workplace injuries a century ago. Instead of spending the time litigating how exactly the worker was injured and whose fault it was, states decided it was better to require employers to have insurance that would pay injured workers without lawsuits. The amount of the compensation was limited, but so were the delays and uncertainty about whether the injured worker would get help. The workers’ compensation system maintains incentives for safety by making insurance companies pay injured workers: Employers with bad safety records will face higher premiums or difficulty getting coverage at all.

Sen. McConnell’s proposal lacks both core elements of previous limitations on lawsuits: It would provide no compensation for injured or killed workers, and it would provide no alternative means of pressing employers to reduce risks to workers.

It would instead leave the families of unfortunate workers disabled or killed by COVID-19 in unsafe workplaces to face mortgage foreclosures and evictions by themselves.

Insurance companies would have no reason to press employers to follow safe practices because the law would block claims and hence pay-outs. Indeed, one bill introduced recently would reduce safety even more: It would not just close the courthouse doors to most injured workers but also limit OSHA’s ability to cite unsafe workplaces.

Conscientious employers would also lose out as their irresponsible competitors cut costs and increased production by foregoing safety precautions. As long as an employer could claim it was acting in “good faith” — which is extremely difficult to disprove — it could cut any corner to give it an advantage.

Unsafe workplaces systematically disadvantage workers of color who disproportionately fill high-risk jobs.

Beyond the human toll, such unsafe workplaces would unfairly shift costs from employers to the taxpayers. Self-sufficient families losing their breadwinners often need public aid. And we still do not know how many COVID-19 infections will result in lasting disabilities, possibly destabilizing Social Security Disability Insurance.

The best way to avoid litigation over workplace injuries is to prevent the injuries in the first place. For the most part, the workers’ compensation system, augmented by attentive OSHA and state and local public health enforcement, does that. Reforms to simplify claims for infected high-risk workers would help.

The current, tragic spiral in infections, hospitalizations, deaths, and disabilities gives grim testament to the costs of neglecting safety considerations.

Congress should be trying to reduce the virus’s spread, not giving irresponsible employers a blank check to sacrifice the health of their workers and their workers’ families for short-term profits. Unsafe workplaces prolong the pandemic and further postpone our economic recovery.

David A. Super is a professor of law at Georgetown Law. He also served for several years as the general counsel for the Center on Budget and Policy Priorities. Follow him on Twitter @DavidASuper1