Lawmakers struggle to balance shielding businesses from COVID-19 lawsuits while keeping workers safe from the virus

Update: The House version of this legislation was pulled from the agenda Thursday, which appears to end the debate on this topic for the special session. Legislators could revisit the issue when they return in January.

It’s a short bill filled with lawyerly jargon. But it’s one that could have a major impact on future coronavirus-related lawsuits in Virginia.

At its pandemic-response special session, the General Assembly has taken up legislation to give businesses and all other property owners broad immunity from being sued by workers, customers or visitors claiming they were infected with COVID-19 due to lax social distancing protocols. 

“Right now, in order for us to have a functioning economy we have to give people some certainty that they can open their business and not immediately get hit with lawsuits for an epidemic that’s nearly impossible to trace,” Sen. Chap Petersen, D-Fairfax, one of the proposal’s sponsors, said at a hearing last week.

The effort aligns with a national push by the U.S. Chamber of Commerce and other pro-business groups to preemptively raise the bar for lawsuits ahead of a potential wave of coronavirus litigation. But Democratic legislators appear to be having difficulty finding a balance between safeguarding businesses and protecting workers who may be risking their health for a paycheck.

In Virginia, similar bills had been advancing in both the House of Delegates and the Senate. But the Senate legislation met an abrupt end Wednesday after lawmakers decided they couldn’t reach a deal that would please all sides.

Labor groups who opposed the Senate bill said the immunity it envisioned was so broad it could undermine Virginia’s emergency workplace safety standards for COVID-19, the first of their kind in the nation. 

Those rules require employers to enact physical distancing wherever possible, mandate face coverings for employees in customer-facing positions or when distancing isn’t feasible, sanitize common areas daily and provide access to hand washing and hand sanitizer. 

Employers also must notify workers within 24 hours if a co-worker tests positive and bar employees known or suspected to be positive for COVID-19 from returning to work for at least three days after symptoms subside, at least 10 days after they were first diagnosed or until they test negative for the virus.

“Those are the policies we need to have in place if we’re actually going to emerge from this pandemic,” said David Broder, president of SEIU Virginia 512, a union of government and home care workers in Fairfax and Loudoun counties. “We were pretty concerned about this bill as a sort of corporate-backed backed attempt to weaken those standards to the point where they weren’t going to protect workers.”

The Virginia Trial Lawyers Association also opposed the Senate bill, saying it would give businesses a “free pass” while asking little in return.

The Senate bill had advanced to the floor, but Majority Leader Dick Saslaw, D-Fairfax, the bill’s original sponsor, moved to strike it from the agenda.

“It just got to the point where we could not put all the groups together even with some willing to make some sacrifices,” Saslaw said.

The move seemed to be an acknowledgement that the bill could backfire on business interests if worker protections were added, potentially creating more liability than they had to start with.

“Unfortunately, for better or worse people feel like they’d rather have no bill at all,” Petersen said Wednesday.

A handful of Senate Democrats opposed the legislation in committee, and Sen. Jennifer McClellan, D-Richmond, had planned to try to amend it to ensure the workplace safety standards would be unaffected. As it stood Wednesday, she said in an interview, it was “just way too broad.”

“The way the bill was written, I thought it was going to be not just an end-run around those standards, but that it would be very difficult for employees or customers to seek redress at all,” McClellan said.

It’s not yet clear what the demise of the Senate legislation might mean for its more labor-friendly counterpart in the House. But the Senate’s decision to drop the effort altogether suggests Democratic leaders in the chamber also saw little chance of a compromise with the House.

Del. Rip Sullivan, D-Arlington, the sponsor of the House bill, said he’s trying to craft a “keep Virginians safe” bill that would incentivize businesses to do all they can to keep their premises virus-free. 

His version of the bill says no business could invoke the immunity for civil action or administrative proceedings seeking to force compliance with the workplace safety rules. Businesses could get immunity, he said, if they are “in compliance with the rules.”

Business groups are concerned about tying the immunity to full compliance with sweeping government-imposed rules. Though businesses have tried their best to adapt in a time of crisis, they contend, it’s unrealistic to expect them to maintain a spotless record on things like social distancing and mask wearing.

“If the compliance standard is so strict that you can’t reach it, that really isn’t helpful,” said Nicole Riley, director of the Virginia chapter of the National Federation for Independent Businesses.

For business owners struggling to survive, Riley said, a coronavirus lawsuit that might cost tens of thousands of dollars in lawyers’ fees alone could be ruinous.

“For small businesses, that kind of money just doesn’t exist right now,” Riley said.

House Republicans voted against the bill in committee, suggesting they feel that — by linking it to the already adopted worker protections — it no longer serves its ostensibly pro-business purpose.

“If during one minute of one day of one month, someone walked from their office to the bathroom without a mask, that knocks them out of immunity,” Del. Jay Leftwich, R-Chesapeake, said before the legislation passed out of committee by a 13-8 vote. “I don’t think that’s what we intend by the bill.”

Several other bills dealing with immunity from COVID-19 claims have been proposed, including some that specifically cover health-care settings. 

Republicans have also pushed for legislation immunizing companies that make personal protective equipment, including gloves, masks, hand sanitizer and cleaning products.

That idea, pitched as a way to boost production of PPE equipment, was already shot down in a Senate committee. Sen. Scott Surovell, D-Fairfax, warned it would enable companies to sell “toxic crap” that burns people’s skin off without facing legal consequences.