Right-wing media continue to push against the public health orders that have been instituted in order to battle the coronavirus pandemic, instead advocating for the reopening of the economy, while playing down the risks that would come with such a move.
Now some conservative media voices are moving to the next logical step: calling for businesses to be shielded from lawsuits that might result from increased COVID-19 transmission in a reopened economy — thus leaving workers without needed protections.
Even with so much economic activity currently shut down, essential workers such as grocery store employees have been dying and grappling with fears about continuing to work. Amazon also confirmed this week that a warehouse employee in New York has died, after workers raised significant concerns about that facility. Meatpacking plants are also becoming major hotspots — a phenomenon some right-wing media voices are blaming on immigrant populations who work in them, rather than the conditions in the plants themselves.
The Wall Street Journal published an editorial on May 6 titled “Stay Shut Down or We’ll Sue,” along with a subheadline warning about a “plague of lawsuits” that would hang over the economic recovery.
The editorial calls for “Congress to pass legal protections related specifically to the pandemic and economic recovery that set a national standard and limit the trial bar’s ability to forum shop class actions in friendly state courts.”
It goes on to urge both immunity in cases where a worker did not actually sustain “permanent impairment of health” or require emergency medical treatment to avoid the same — and also for cases where a person did require such treatment, or even if they died, as long as the business “complied with relevant guidelines during the crisis and after reopening.” As evidence of the type of lawsuit that presumably should be barred via congressional legislation, the editorial mentions a specific case of a Walmart worker who did die of coronavirus.
One obvious step is to eliminate frivolous lawsuits that don’t claim serious injury. Law firms have already filed lawsuits against cruise lines, arguing that even passengers that did not contract the virus were subject to emotional harm and entitled to punitive damages. The answer is to restrict lawsuits to individuals who sustain “serious physical injury”—perhaps defined as a permanent impairment of health, or situations that require medical intervention to preclude such an impairment.
Even then, business owners need assurance that they won’t face suits if they have complied with relevant guidelines during the crisis and after reopening. One law firm has already filed a wrongful death suit on behalf of a family of a Chicago-area Walmart worker who died in late March from the virus. Yet Walmart has stressed the steps it has taken to protect workers and customers, and in many cases it is impossible to prove where an individual picked up the virus. The standard for lawsuits against business should be evidence of reckless conduct or deliberate indifference
CBS News reported on April 8 about the allegations contained in that wrongful death suit, filed by the family of Wando Evans: “Their suit alleges management at the store in Evergreen Park, Illinois, at first ignored symptoms exhibited by Evans and other workers that were consistent with COVID-19, the disease caused by the novel coronavirus.” Evans was sent home by store managers on March 23 and was found dead two days later.
The sister of another worker who died at the same store has also said in a statement: “For weeks, my brother and his coworkers worked at Walmart without masks or gloves while thousands of customers came in every day. There was no enforced social distancing at the time and inadequate paid leave to make sure people weren't going to work sick.”
While the Journal editorial says the standard for lawsuits should be “evidence of reckless conduct or deliberate indifference,” the chosen example of a supposedly problematic lawsuit — from which the piece says employers should be shielded by new legislation — is a case in which exactly those sorts of allegations are being made. The civil complaint, in addition to alleging negligence on the part of Walmart, premises one of its wrongful death counts on Walmart’s alleged “willful and wanton misconduct” — a higher legal burden to meet than the minimum culpability the Journal editorial argues should be met for lawsuits to go forward.
On the May 6 edition of Sean Hannity’s radio show, former Fox News host Bill O’Reilly discussed the issue with Hannity, suggesting a conspiracy of “bloodsucking extortionist lawyers” and Democratic leaders is scaring businesses out of reopening.
Also, on the May 7 edition of Fox Business’ Mornings with Maria Bartiromo, a panel discussion on various issues surrounding the possible trajectory of an economic recovery ended with a blunt declaration in favor of liability protection for businesses:
It seems that businesses need the confidence “to bring workers” back — but there’s not much talk about offering workers the assurances they would need to come back safely.