Despite arguments to the contrary, most recently from former NYC mayor and former Democratic presidential aspirant Michael Bloomberg, a liability shield for companies who follow federal administrative guidance in reopening their workplaces will not lead to significantly less litigation and nor will it, in the former mayor’s words, “help ensure workplaces are safe.” Michael Bloomberg, “To Restart Business, Protect Workers,” Bloomberg.com (May 11, 2020).

Mr. Bloomberg is not the only one pushing for liability shields. Recently, a model state bill has been circulated by the American Legislative Exchange Council, or ALEC, a non-profit that drafts conservative model legislation. Chris Marr, “Red States to Get Blueprint on Limiting Business Virus Liability,” BloombergLaw.com (May 5, 2020). Jonathon Williams, chief economist for ALEC, claims that liability shields would provide “business owners [with] confidence that trial lawyers will not be able to feast on them for real or perceived harm.” Alan Greenblatt, “As Economy Reopens, a Push to Rethink Regulations,” Governing (May 15, 2020). Oklahoma and North Carolina have both passed such legislation already, and Kansas appears poised to as well. Even in a solidly blue state like New York, Governor Cuomo inserted language into the state budget passed back in March which shields nursing homes from liability for COVID-19 outbreaks. Amy Julia Harris et al., “Nursing Homes Are Hot Spots in the Crisis. But Don’t Try Suing Them,” New York Times (May 13, 2020). At the federal level, president Trump has expressed support for liability shields generally, while also suggesting that the use of the Defense Production Act to keep meatpacking plants open would address “liability problems” that the companies face. Sam Bloch, “President Trump described meatpackers’ ‘liability problems.’ Here’s what that could mean for workers,” The Counter (May 7, 2020). And Senate majority leader Mitch McConnell has suggested that any new stimulus bill must address the “epidemic of lawsuits” that he claims will “impact our ability to get back to work.”

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