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Pandemic Liability Shield the Epicenter of Congressional Relief Negotiation

Amid stalling talks between Congressional leaders over the content of new Coronavirus relief and economic stimulus legislation, the issue of providing for temporary restrictions on pandemic related lawsuits has emerged as an intractable dispute separating Democrats, Republicans, and key constituencies in their respective coalitions.

The Safe to Work Act (S. 4317), introduced last week by Senator John Cornyn (R-TX) has opened a seemingly unbridgeable divide between Senate Republicans, who are insisting that liability relief be included in any comprehensive COVID-19 legislation, and House and Senate Democratic leaders who have offered blanket opposition to the measure.

The dispute pits large coalitions within the business community (including the US Chamber of Commerce), education, and health systems against politically powerful labor unions and the trial bar. The White House disclosed last week that it wouldn’t insist on the inclusion of the legislation.

“The fight over the temporary liability shield may be the single largest barrier to a resolution of what most consider must-pass legislation,” according to former Rep. Philip S. English of Arent Fox. “The intent of this change is to speed reopening of the American economy and vital institutions by providing relief for those who comply with public health guidelines. But the differences in the need and method of a liability safe harbor may be impossible to resolve as part of a process requiring significant consensus.”

Mr. English predicted that the liability proposal “is probably impossible to pass as proposed, but also difficult to reshape to find common ground. The congressional consensus that prevailed early in the pandemic has dissipated, and negotiators face an impasse unless both sides dial back their demands and settle for more targeted assistance. Sweeping civil justice reform, even on a temporary basis under crisis conditions, is running into fierce ideological headwinds on the lip of a polarized election.”

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