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Law360 (August 14, 2020, 5:43 PM EDT )
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| David Partlett |
From the outset, Sen. Mitch McConnell, R-Ky., was insistent that immunities from liability ought to be bestowed upon employers and medical establishments. He described it as a red line. Last Monday the bill was displayed.
At a time when the economic security of the nation is at peril, we find this bill, ironically named The Safe to Work Act, robs vulnerable workers and others from exercising their fundamental rights to bring actions against employers and others whose negligence has caused them to suffer from infection by the novel virus.
The law has long recognized the role of government and its officials to intrude on citizens' rights and privileges. First-year law students in the first few weeks learn that property rights must give way to official acts of confiscation. Public officials may in good faith take property in order to achieve certain public ends.
The California Supreme Court in 1853 entertained a case that arose from the San Francisco fire of 1849, the first of seven that were to devastate that city over three years. In this fire, John Geary, the city's alcalde — essentially its mayor — ordered the blowing up of Pascal Surocco's house and property. The purpose was to stem the progress of the fire.
The court found that in the circumstances Geary had a privilege to make and execute such an order. But the court entered an important caveat. It was incumbent on legislatures to provide for compensation of those whose property had been sacrificed for the public good. It flouts our basic social compact for government rightly to expropriate property without compensating the deprived owners.
The idea is that citizens cede their rights in extremis but should not have to bear the cost alone. Society should bear the cost. The framers of the U.S. Constitution enshrined the notion in the Fifth Amendment.
As we face the threats and challenges of COVID-19, the same imperative applies — that government is expected to exercise emergency powers for the benefit of the public. By long tradition in the law, those who are required to sacrifice property or limb should, under our shared view of the social compact, be compensated.
The same notion undergirds federal legislation that provides that vaccine manufacturers shall not face liability in court, but the government explicitly gives compensation to the few who suffer injury from the vaccine.
The legislation in its current form will crimp the rights of essential workers and others. At a time of demonstrated exposure to a deadly pandemic, workers who already are denied effective regulatory protection are now robbed of an ability to seek compensation by suing in court in the usual way.
We find that the GOP Senate leadership is proposing to throw the cost of the pandemic heavily upon those who are the most vulnerable. All claimants in the suits, which must be brought in federal courts, must establish by clear and convincing evidence that the conduct was intentionally wrongful or was grossly negligent. Claimants are subjected to all manner of procedural hurdles.
All this is to avoid an unsubstantiated fear that liability will be too burdensome. Even if we concede that some protection is warranted, it does not justify throwing all the weight of the costs of illness on the vulnerable.
The high political rhetoric around the issue may see the social compact founder on the rocks of political divisiveness and special interest lobbying. All this violates the fundamental precepts of the law designed to protect those who sacrifice for the public good.
If anything, the government ought to strain every fiber to protect these vital but vulnerable workers, often people of color and racial minorities, and others exposed. The government should provide full compensation to those who succumb to COVID-19 and are left without legal recourse.
It is proper to be concerned about the liability exposure of actors, but any financial package ought not perversely deprive persons of compensation; rather it should compensate them. This is the minimum duty of civilized societies. From destructive city fires and floods to the tragedy of 9/11, government has provided succor. It should do so now.
David F. Partlett is the Asa Griggs Candler professor of law at Emory University.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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