Hundreds of trade groups representing every sector of commerce have asked Congress to pass legislation to shield businesses and schools from litigation as they navigate reopening amid the ongoing COVID-19 pandemic, but critics say the move eliminates individuals’ rights.

The groups sent a letter to congressional leaders last week requesting protection from “meritless” lawsuits.

“To emphasize, we are not asking lawmakers to shield bad actors. Liability protection should not be given to any business that willfully ignored the risks of the spread of COVID-19 and committed gross negligence. Rather, businesses that made reasonable, good faith efforts to keep their doors open in a way that was safe for their communities should be protected from liability,” said the groups, which include groups representing grocers, restaurants, truckers, pharmacists, and other industries. “In spite of often vague and evolving health and safety guidelines, these businesses made substantial investments to protect individuals from exposure, implementing unprecedented virus mitigation protocols, such as enhanced cleaning and sanitation practices as well as social distancing measures.”

The debate isn’t a new one – businesses have been asking for a liability shield for weeks. But this week Congress is considering a new bill (S. 4317), the SAFE TO WORK Act, that would provide protection from liability for businesses as long as they have made reasonable efforts to mitigate the spread of the novel coronavirus that causes COVID-19. It offers sweeping protections against litigation, including over employee complaints that would ordinarily fall under the Americans with Disabilities Act, the Fair Labor Standards Act of 1938, and other federal workplace protection laws.

Passing a liability shield for businesses has been a priority of Senate Majority Leader Mitch McConnell, who warned against a “second pandemic” of litigation and he and co-sponsor Sen. John Cornyn (R-Texas) have been promising this “legal safe harbor” since May. Under pressure to pass another coronavirus aid measure after the $600-per-week pandemic unemployment relief benefit ran out last week, though, Congress may leave the liability shield out, according to reports.

Absent a federal shield, businesses and schools have resorted to having employees and student athletes sign liability waivers. As schools everywhere struggle with the question of liability while trying to re-open, many say that lawsuits are “literally inevitable.”

Questions abound on the enforceability of liability waivers – observers say it’s unlikely they will halt litigation or hold up in court.

“Requiring employees who are returning to work to sign COVID-19 waivers is problematic in several respects,” said attorneys at the law firm of Vorys, Sater, Seymour and Pease in a blog post. “First, state workers’ compensation statutes are normally an employee’s exclusive remedy against an employer for injuries and occupational diseases arising in the course and scope of employment.  Employees are not permitted to prospectively waive their rights under state workers’ compensation laws.  Consequently, a return-to-work waiver seeking to limit liability related to an employee contracting COVID-19 in the workplace would not be enforceable under workers’ compensation laws.”

Critics of a liability shield also say it would take away necessary rights of employees and workers, shifting the odds of proving actual negligence on the part of employers dramatically. In fact, the Senate measure would allow businesses to recover damages from employees or customers who are “engaged in a pattern” of making complaints or demands over coronavirus protections.

“The ‘insubstantial lawsuits’ that Republicans seek to block are workers’ claims to safety protections, damage claims by consumers and even wrongful death actions filed by the families of employees who die after exposure to the virus at work. The bill would gut individuals’ rights to hold companies and other institutions accountable for exposing them to COVID-19,” said Amy Dru Stanley, a University of Chicago history professor, in an op-ed in the Washington Post.

“Ensuring that workers and consumers can hold companies accountable for their actions is critical to establishing a safe reopening of our economy. Currently, workers who are injured or become ill as the result of workplace exposure face tremendous hurdles in holding their employer accountable,” said Celine McNicholas and Margaret Poydock of the Economic Policy Institute in a blog post.

To read the full post by Erin Ayers with Advisen, click HERE.