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Law Students on Workers' Rights Series

How COVID Employer Liability Shields Could Harm Workers Rights 

May 25, 2021


By Reagan Tillery

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

When the nationwide pandemic was declared in March of 2020 due to COVID-19, no one knew how drastically life would change. Most offices became ghost towns, consequently compelling some offices to transfer to digital platforms. Drenched in uncertainty, American businesses faced mandatory restructuring just to survive. 

The past year showed that working in environments that failed to adhere to CDC health guidelines could be detrimental to workers’ lives. As a result, state legislatures across the country passed liability shield legislation, and similar bills were proposed in Congress. Because of their adverse effects, employer liability shields represent the biggest challenge facing workers’ rights in the future. 

Before the Labor Movement, America’s employer liability laws were primarily a culmination of common law with the assumption of risk defense forming the basis of today’s laws. The assumption of risk stated an employer was not liable if an injury occurred because the worker accepted the risks of the job when they were hired. This defense would continue to evolve until Labor Movement activists achieved reform during the Progressive era. 

The Federal Employers’ Liability Act, passed in 1906, provided worker’s compensation for railroad workers and represented the first divergence from the common law’s unholy trinity of defenses. Because of our federalist system, most worker’s compensation legislation was left up to the states. Eventually, states began passing worker’s compensation laws in 1910 and employers began assuming more liability. 

By the 21st century, employee liability had a solid basis. If employees were injured as a result of the conditions of their job, they could expect worker’s compensation. However, legislation passed during the pandemic represented a shift from this tradition. 

When the economy began reopening in May 2020, business owners feared a rush of potential lawsuits against them. To prevent this, interest groups and lawmakers began drafting legislation. 

The U.S. Chamber of Commerce drafted a federal bill that would provide a shield for employers so no lawsuits could be filed against employers if their employees contracted COVID-19 while at work. 

Likewise, Republican Congressmen proposed legislation that would provide an employer liability shield for five years. Once the shield is removed in 2024, the proposal allows individuals to file medical liability and personal injury in federal courts. 

However, the proposal would also make it even harder for employees to file lawsuits because they would have to prove their illness was a direct result of the employer’s gross negligence or willful misconduct. This is a divergence from the traditional employee liability cases. 

Additionally, the proposal includes penalties for plaintiffs who bring meritless claims. With penalties of up to $50,000, individuals with valid claims may be discouraged from considering filing a lawsuit. 

Many states have enacted employer liability shields. Georgia recently passed a bill extending the Georgia COVID-19 Pandemic Business Safety Act for another year, a law comparable to the federal proposal. 

Unfortunately, while businesses enjoy this protection, employees are left with no recourse. Liability shield legislation came when stories began surfacing of employees working under dangerous health and safety conditions. For instance, nursing home staff was forced to work with little to no personal protection equipment as they cared for the most vulnerable populations. Similarly, airline employees discussed being forced to clean planes with no personal protection equipment. Additionally, factory workers were subject to some environments that lacked social distancing. 

Employees across industries even discussed how they faced penalties if they needed to self-quarantine. Thus, the reluctance of employers to implement CDC guidelines at the height of the pandemic presents an obvious problem with employer liability shields. 

Without the threat of potential lawsuits, there is nothing to motivate employers to protect worker’s rights related to COVID-19. This, in fact, infringes upon the rights of workers and makes them subject to the goodwill of their employers. 

In conclusion, employer liability shields are the biggest challenges facing worker’s rights in the future. The COVID-19 pandemic has brought about a shift from traditional employer liability established during the Progressive Era. Federal and state lawmakers have drafted legislation to prevent employers from being held liable if their workers contracted COVID-19 due to the conditions of the job. In many states, these employer liability shields have a freeze on lawsuits for a one to five-year period. 

Employer liability shields are harmful to workers because they can no longer utilize the justice system to hold employers accountable. With a freeze on lawsuits and penalties for meritless claims, workers are severely disadvantaged. In order to protect worker’s rights, employer liability shields for COVID-19 related claims should be repealed. 

Reflections from Charles Joseph

Workers’ rights rely on a blend of federal, state, and local laws. As Tillery demonstrates, events like the COVID-19 pandemic can easily disrupt the legal protections for workers. While many employees worried about their safety in the workplace, politicians weighed liability shields as a way to protect employers. These policy debates raised questions about workplace discrimination and the limits of disability discrimination laws, since some employees faced greater risks from in-person work during the pandemic. 

The thoughtful, timely perspective Tillery’s essay offers is one reason Reagan Tillery won the Charles E. Joseph Employment Law Scholarship for the 2020/2021 academic year. 

Reagan Tillery holds a bachelor’s degree in political science and Africana studies from Mercer University. In the fall, she will join the Howard University School of Law as part of the class of 2024. Tillery is the winner of the Charles E. Joseph Employment Law Scholarship for the 2021/2022 academic year.

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.

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