Senate Majority Leader Mitch McConnell (R., Ky.) and Sen. John Cornyn (R., Texas) crafted the measure ahead of negotiations with Democrats over the next round of coronavirus legislation. The proposal, which the White House is reviewing, temporarily offers schools, businesses, health-care providers and nonprofit organizations legal protections when people allegedly exposed to the coronavirus sue them, according to a summary seen by The Wall Street Journal.
Under the proposal, defendants in those cases would only be held liable if they didn’t make reasonable efforts to comply with public-health guidelines and instead demonstrated gross negligence or intentional misconduct, according to the summary. The defendants would have the right to move the case to federal court if they so choose, offering a potentially more favorable alternative to state courts.
For coronavirus-related personal injury and medical liability cases, the plan also sets a clear-and-convincing-evidence burden of proof, places a cap on damages and heightens pleading standards.
The protections would backdate to December 2019 and last through 2024, or until the expiration of a declaration under the Public Readiness and Emergency Preparedness Act that offers liability immunities.
Mr. McConnell has for months said that expanded liability protections must be included in the fifth coronavirus relief package, which lawmakers will begin negotiating next week when they return to Washington. Republicans, Democrats and the White House will also need to resolve differences over enhanced unemployment benefits, another round of stimulus checks and reopening schools, among other issues, during those talks.
“I’m not going to put a bill on the floor of the Senate that doesn’t have liability protection in it,” Mr. McConnell said during an event in Kentucky on Wednesday. “This would protect hospitals, doctors, nurses, businesses, universities, colleges, K-12, everyone dealing with coronavirus who acted in good faith.”
The legislation from Messrs. McConnell and Cornyn also shields employers from lawsuits arising from coronavirus testing in the workplace and from agency probes for steps they took to comply with stay-at-home orders. The Republicans also want to limit liability for new types of personal protective equipment if the equipment meets certain federal standards.
Business and education groups, including the School Superintendents Association, have urged Congress to pass new legal protections and ease the risk of lawsuits as schools and businesses weigh whether to reopen. The U.S. Chamber of Commerce has lobbied for temporary liability protections from what they say are “warrantless lawsuits” when companies follow the law in reopening.
“Without temporary liability protections many American businesses face the daunting choices of closure, bankruptcy, or reopening and risking a business-crippling lawsuit,” said Neil Bradley, executive vice president and chief policy officer at the Chamber.
The proposal from Messrs. McConnell and Cornyn will face Democrats skeptical of expanding liability protections. House Speaker Nancy Pelosi (D., Calif.) said Wednesday that Congress should bolster protections for workers, not employers. Democrats have previously sought to strengthen Occupational Safety and Health Administration rules during the pandemic.
“I think the most important way to protect our workers and our employers and customers and clients of businesses, as well, is to have a strong OSHA provision in the legislation,” Mrs. Pelosi said. Some unions have also said they oppose expanding liability protections for businesses.
According to a litigation database kept by law firm Hunton Andrews Kurth, more than 3,500 lawsuits involving the coronavirus have been filed across the U.S. since January. Roughly 300 of those cases deal with labor and employment issues, about 240 touch on consumer issues, and nearly 200 relate to education, according to the firm’s database.
Several states have adopted measures expanding legal protections for health-care providers and businesses during the pandemic. A survey conducted in June by Public Opinion Strategies showed that 80% of respondents support a new law shielding businesses, schools and other organizations from Covid-19 lawsuits.
The American Association for Justice, which is the lobbying arm for U.S. trial lawyers, opposes any plan to give broad liability protections to companies. Trial lawyers say state laws already shield companies from lawsuits unless they act “unreasonably” when operating.
“The reason we don’t support corporate immunity is because current law already protects companies that are doing the right thing,” Julia Duncan, director of federal programs for the organization, said.
The liability proposal is one part of what Mr. McConnell has said will be a broader framework Senate Republicans roll out next week ahead of negotiations with Democrats.