President Trump described meatpackers’ “liability problems.” Here’s what that could mean for workers.

As the country reopens, businesses say they’ll need liability protection. But from what, exactly? Legal experts weigh in.

Last week, amid a rash of closures in the major meatpacking sector, and after much public conversation over a full-page newspaper ad taken by Tyson Foods’s chairman proclaiming America’s food supply chain was “breaking,” President Trump issued an executive order to keep meat plants open.

The Defense Production Act, a Korean War-era law enacted to put control over industrial production into government hands, was the mechanism Trump used to require that packers stay open during the Covid-19 crisis. That’s not particularly unusual: the act has been used on many occasions during Trump’s time in office. What made it of particular note was the language he used. He told reporters in the Oval Office on April 28 that it would address “liability problems” related to the supply chain, specifically mentioning Tyson Foods.

What “liability problems” was he referring to? Well, worker safety for one. As we’ve reported, meatpacking plants have become coronavirus clusters, infecting as many as 5,000 workers industrywide and killing at least 20. 

But the language in the executive order offered little in the way of further clarity. In the days after the order was issued, pundits savaged the president, saying it was part of a plot to “indemnify corporations in advance” for what might happen to their employees. That is, the companies would be able to avoid being held accountable for exposing their workers to a potentially fatal virus. 

“For what it’s worth, the ‘liability shield’ language is confusing, and I suspect the reason is strategic.”

That vague language, as it turns out, was part of a trend. As states have begun to lift their stay-at-home orders, and restaurants in some regions have clamored to reopen their doors to customers, there’s been a lot of chatter from politicians and business owners about the need for “liability shields.”

It’s happening in cities like New York, for instance, where real estate and hospitality interests are pushing for legal immunities that have been afforded to doctors and hospitals. It’s happening in statehouses, thanks to a template bill being circulated by ALEC, the influential conservative legislative group.

And it’s happening in Washington, D.C. In the Senate, majority leader Mitch McConnell has demanded business liability protections in the next stimulus bill, citing the prohibitive costs of warding off hundreds of coronavirus-related lawsuits that have already been filed. “This epidemic of lawsuits,” he told reporters, “is going to impact our ability to get back to work.”

If you’re confused, you’re not alone. Legal experts contacted by The Counter say that language is deliberately vague—and meant to achieve rhetorical goals as much as legislative. A “liability shield” could be a way to limit employees’ claims for coronavirus-related medical bills. It could be a way to end consumer lawsuits. Or, some say, it could be a Trojan horse for tort reform.

“For what it’s worth, the ‘liability shield’ language is confusing, and I suspect the reason is strategic,” said Brad Wendel, a Cornell University law professor.

“I think business groups have said, here’s our chance to get some liability protection for businesses under the guise of public health—that we have to do this, otherwise we won’t be able to reopen the economy safely.”

According to Wendel, employers are already shielded from their employees, so to speak, in the form of workers’ compensation—a non-judicial insurance system that handles the vast majority of workplace injuries. If employers provide their workers with access to personal protective equipment, and enforce social distancing, then there’s “no way” they’re liable to employees who contract Covid-19 at work.

“They don’t need a liability shield,” Wendel said. “They’ve already got one.”

The real issue, Wendel thinks, is that there’s no version of that shield against claims brought by customers. If someone goes to a restaurant, and alleges that they contracted the coronavirus there, the business could be at fault.

Wendel suspects business groups—such as the U.S. Chamber of Commerce, that are calling on the government to provide a “safe harbor for good actors” as they reopen—are using the pandemic to advance a decades-long battle to reform tort law.

Torts are personal injury claims settled in civil court. Since the 1990s, several states have put caps on these forms of compensatory damage, to the delight of pro-business coalitions.

Consumer advocates say torts force businesses to be safer—for instance, adding seatbelts and airbags to cars. Business groups, on the other hand, say these personal injury lawsuits are frivolous and a way to extract money from insurance companies and deep-pocketed corporations. The infamous hot coffee lawsuit is a litmus test in this debate.

“It’s the now-infamous maxim, never let a crisis go to waste,” Wendel said. “I think business groups have said, here’s our chance to get some liability protection for businesses under the guise of public health—that we have to do this, otherwise we won’t be able to reopen the economy safely.” 

It’s not just meat plants where worker health is at stake. On Monday, a worker at an Amazon warehouse in Staten Island, New York died from Covid-19

“The occupational disease provisions of workers’ comp have long been recognized as being pretty paltry and limited.”

And in April, Walmart was sued by the family of Wando Evans, one of two workers to die from the virus at an Evergreen Park, Illinois store. The wrongful death suit accused the company of not doing enough to protect Evans from the disease. 

But that and other coronavirus-related worker lawsuits are likely to be tossed, said Rip Verkerke, who directs the University of Virginia’s employment and labor law program, because worker’s compensation is the “exclusive remedy” for workplace injury. 

“And frankly, the occupational disease provisions of workers’ comp have long been recognized as being pretty paltry and limited,” Verkerke said. “Many, many occupational disease sufferers are unprotected and uncompensated.”

What makes the Covid-19 pandemic different, and uniquely concerning to large employers like Tyson, is the effect that a wave of expensive claims could have on their insurance premiums. 

“If they have a number of these hundred-thousand or perhaps even million-dollar claims, when you consider the intensive hospital care for multiple weeks, that becomes part of their claim history,” said Verkerke. 

A “liability shield,” in that context, would limit the ability of workers to make those claims—which would be tremendously appealing to companies with huge workforces. 

“Normally, the standard for worker’s comp is causation. If it’s connected to the work, then the employer is liable,” Verkeke added. “What they want is to add some safe harbor protection against liability, which would require proof of maybe gross negligence, or a violation of federal or state safety guidelines.”

That higher burden of proof sticks in the craw of some tort law experts. In an April policy memo, the Chamber requested that the government protect businesses from lawsuits so long as they were following CDC guidelines, and their actions did not amount to “gross negligence, recklessness, or willful misconduct.”

“If you, the government, has a contract with somebody else to provide some good or service, and that business contracts with other people, the Defense Production Act says my contracts come first.”

Raising that threshold would mean that merely “negligent” companies may not be held responsible for what happens to customers in their stores, including contracting Covid-19, said Anthony Sebok, a tort law professor at Cardozo School of Law in New York.

“If I’m the Governor of Michigan, and I say that, starting on June 1, a company that provides food to the public, like a restaurant, has to provide every worker with gloves, and every hour they have to be replaced, negligence is failing to do that,” he said.

The Chamber of Commerce, and other trade groups requesting liability protections contacted by The Counter—including the National Grocers Association, the North American Meat Institute, and the National Pork Producers Council—did not respond to requests for comment.

As for major meatpackers? Agriculture Secretary Sonny Perdue on Tuesday wrote a letter instructing them and other industry groups to follow newly-established federal safety guidance, saying that “further action under the Executive Order and the Defense Production Act is under consideration and will be taken if necessary.” What that looks like remains unclear.

Sam Bloch is a staff writer for The Counter, where he covers business, environment and culture. He has also written for The New York Times, L.A. Weekly, Places Journal, Art in America and other publications.