As lawmakers consider the next COVID-19 relief package, a critical hurdle stands in the way: liability protection.
At issue is how and whether providers (as well as other businesses, schools and nonprofits) should be insulated against pandemic-related lawsuits.
Republicans want a substantial liability shield put in place. Democrats say that’s ridiculous.
The possible implications remind me of a scene from All the President’s Men. Ben Bradlee (played by Jason Robards) warns two reporters covering the Watergate scandal that “Nothing’s riding on this except the, uh, First Amendment to the Constitution, freedom of the press and maybe the future of the country.”
To be clear, the liability debate will not put any of those three things at risk. But an adverse outcome could spell the end of seniors housing and care as we know them. You can bet many lawsuits are now being prepared, demanding massive payouts. And as the Wall Street Journal reported Thursday, workplaces are already being targeted.
The liability portion of the relief bill was crafted by Sen. John Cornyn (R-TX). It would protect facilities from coronavirus-related liability claims for five years — unless operators acted with willful misconduct or were grossly negligent.
Senate Majority Leader Mitch McConnell (R-KY) said the provision is a must-have “red line.” The Kentucky Republican added that he will not go along with Democrats’ calls for aid to state and local governments without a liability shield. President Trump has also said he’s willing to sign legislation that protects providers.
But Democrats and their constituencies remain opposed. They counter that Cornyn’s plan does not force providers and others to follow any one set of standards for protecting workers, patients or others at risk.
You can probably imagine where plaintiffs’ attorneys stand. So as fights go, this one could turn into a real brawl.
Good thing there’s not much at stake.
John O’Connor is Editorial Director for McKnight’s.