David Garland Quoted in “Employer Liability Shield Makes Debut in GOP Virus Proposal”

Law360

David W. Garland, Member of the Firm and Chair of the firm’s National Employment, Labor & Workforce Management Steering Committee, was quoted in Law360, in “Employer Liability Shield Makes Debut in GOP Virus Proposal,” by Jon Steingart. (Read the full version – subscription required.)

Following is an excerpt:

Employers that follow guidance for protecting workers from COVID-19 would get an extra layer of protection from negligence lawsuits, under a Republican proposal introduced Monday that would also cut unemployment benefits.

Senate Majority Leader Mitch McConnell, R-Ky., introduced the measure on the Senate floor, insisting that protections will take some pressure off so “employers can spend their next months actually reopening rather than fighting for their lives against frivolous lawsuits.”

“We’ll preserve accountability in the event of gross negligence or intentional misconduct, but we’re not going to let trial lawyers throw a party on the backs of the front-line workers and institutions who fought this new enemy on the front lines,” McConnell said.

Under the proposal, lawsuits claiming people contracted the novel coronavirus at work because the business undertook inadequate worker protection would have to overcome a standard higher than what’s ordinarily required for negligence suits. The higher standard would also apply to personal injury and medical malpractice suits.

Additionally, the measure would let employers remove these suits, which typically are heard in state court, to federal court, as well as immunize employers from unintentional violations of other employment laws on occupational safety and health, minimum wage and overtime, and discrimination.

The release Monday of the GOP’s $1 trillion coronavirus relief package marks the starting point for cross-party negotiations. Democrats staked out their opening position with the $3 trillion Heroes Act, which the House passed in May.

If passed, the liability shield legislation would provide businesses with some assurance that they will be protected if they follow public health guidance and something goes wrong anyway. …

The Republican plan allocates $25 billion to boost state testing programs. It also includes liability protection for businesses whose workers are injured by testing.

In March, Congress passed the Coronavirus Aid, Relief and Economic Security Act, or CARES Act. One of its provisions, which expires at the end of July, created a pandemic unemployment insurance fund that provides a $600 per week enhancement on top of the regular benefits each state pays out. …

The GOP proposal would renew pandemic unemployment benefits at $200 per week for two more months. That’s intended to give state unemployment offices time to set up a system to distribute benefits that would be pegged at 70% of unemployed workers’ prior earnings. Dubbed “wage replacement,” the idea is to extend a lifeline while avoiding incentivizing people to stay out of work by ensuring they don’t make as much or even more while unemployed.

The enhanced unemployment benefits workers have been receiving have made it harder for employers to bring people on board because they can’t always compete with the enhanced benefit, according to attorneys who represent employers.

“Employers wanting to hire have found it difficult at times to do that at the current level,” David Garland, chair of Epstein Becker Green’s employment, labor and workforce management practice who works in its New York and Newark offices, told Law360.