During the COVID-19 pandemic, some West Virginians have been told to report for work when they should have been isolating at home. Some lost loved ones in nursing home outbreaks that could have been prevented.
Some worked in close proximity to co-workers and customers who refused to wear masks.
If a bill rapidly making its way through the Legislature becomes law, West Virginians won’t have the ability to present any of those problems to a judge.
Senate Judiciary Chairman Charles Trump, R-Morgan, said this means, “there won’t be any suits in which the argument is, ‘It’s your fault I got COVID.'”
Last week, lawmakers, as well as a union leader and a lawyer who handles workers’ rights cases, said they didn’t know of any lawsuits over COVID-19 in West Virginia.
But Jennifer Wagner, executive director of the nonprofit legal firm Mountain State Justice, said the bill would prevent businesses from fairly compensating workers and customers, whether or not those people filed lawsuits.
Wagner, who represents low-income West Virginians in consumer, civil rights, health care, and workers’ rights litigation, said she doesn’t think any of her clients ever want to sue.
She said they approach her “as a last resort after they have tried every single thing they can to avoid suing.”
But the prospect of lawsuits can dissuade employers and health care providers from putting patients and employees at risk, according to Wagner.
It can also encourage employers and health care providers to compensate those they hurt, including health care expenses or other financial losses, before the issue can go to court.
“I don’t think that this is an actual real problem,” Wagner said. “I think that it will create actual real problems.”
The bill could have far-reaching effects
Republican Gov. Jim Justice and a group of mostly Republican state senators introduced separate bills this year to prevent lawsuits related to COVID-19. The West Virginia Chamber of Commerce and U.S. Chamber of Commerce also support the legislation.
Under the governor’s original bill — as well as the protections requested by the Chamber — people could still sue if they showed a defendant was acting willfully and recklessly, and wasn’t following federal or state COVID-19 guidelines, such as a mask mandate, or isolating after exposure. The senators’ bill, with Trump as lead sponsor, would essentially prohibit any COVID-related lawsuits.
In the Senate Judiciary Committee, senators took the governor’s bill (SB 277) and replaced its language with the harsher restrictions from their own bill. That committee and the full Senate approved that version of the bill, and the House Judiciary Committee followed suit late Tuesday.
As for whether Justice supports the broader bill, Jordan Damron, a spokesman for the governor, said Friday that Justice “doesn’t have any comment on this bill at this point in the legislative process.”
That current version of the bill would prevent “all suits and claims for loss, damages, personal injuries, or death arising from COVID-19.”
It would also provide “assurances to businesses that reopening will not expose them to liability for a person’s exposure to COVID-19.”
If it becomes law, it means you couldn’t sue, for example, if you were forced to work around people not wearing masks, caught COVID at work, and racked up medical expenses. If you died, your family couldn’t sue, either.
You couldn’t sue if you ate a restaurant where employees diagnosed with COVID-19 were forced to work anyway, and you caught the virus and experienced severe complications.
You couldn’t sue over a nursing home worker recklessly bringing COVID-19 into their workplace, if one of your family members died as a result.
You couldn’t sue for nearly anything related to COVID-19. That’s the point, according to Trump. “This bill will preclude suits,” he said. “What we’re saying is, we’re not having litigation.
“It’s all over the world. It’s here in big numbers,” Trump said of the pandemic. “There’s no societal benefit from having lawsuits to say, ‘It’s your fault I got COVID.'”
Trump said that even if the federal government had contained the virus, and the spread had been limited, he would support the legislation.
“To me, it’s a global pandemic and the purpose of this bill is to say ‘Let’s not spend the next five or ten years having everybody sue everybody else, because they got COVID or because someone else got COVID.'”
People would still be able to claim workers’ compensation benefits, Trump said, which could include temporary total disability benefits or medical expenses. They wouldn’t include compensation for COVID-related problems like grief due to the loss of a loved one.
Both the U.S. Chamber of Commerce and the West Virginia Chamber of Commerce support the current, more far-reaching bill, according to Danielle Waltz, who represented the U.S. Chamber in testimony before the House Judiciary Committee Tuesday afternoon.
As for whether Justice supports the broader bill, Jordan Damron, a spokesman for the governor, said Friday that Justice “doesn’t have any comment on this bill at this point in the legislative process.”
Mortgages and rent payments
Wagner, of Mountain State Justice, is more concerned with the senators’ broader bill, which would prevent lawsuits even when a company was ignoring pandemic guidelines. For example, she said, maybe an employer forced a person with chronic obstructive pulmonary lung disease to work in close proximity to someone diagnosed with the virus who wasn’t wearing a mask.
“The person could come down with COVID-19 as a result of that and become ill for the rest of their life or even die,” Wagner said. “And if an employer is ignoring the mask mandates, ignoring the requirements of the government, ignoring basically all the guidance that’s been put out, they should be held responsible.”
Wagner also said that the bill would put companies who did try to follow the guidelines, and keep their workers and customers safe, at a competitive disadvantage.
If one company followed the guidelines and let sick workers stay home, they could make less money as a result.
“It is creating liability for people who are trying their best because it’s allowing them to be totally undercut by the people who don’t even try a little bit,” she said.
“We put people in jail for killing people,” she said. “Right now, the Legislature is talking about reinstating the death penalty. So we’re talking about this state putting people to death for intentionally taking the life of another person. There is no reason that an individual who kills someone should be put to death, but a corporation that kills many people should be able to not even have to pay any money to compensate their families.”
Wagner also worried that the senators’ broader bill could affect people who are behind on student loan, mortgage and rent payments. President Joe Biden issued executive orders to extend moratoriums to prevent banks from foreclosing, and allow borrowers to postpone student loan payments.
People have reached out to Mountain State Justice for help with banks threatening foreclosures, she said. But they haven’t filed lawsuits. It’s enough to give them advice on how to respond and come to an agreement, she said, since a moratorium is in place.
“But I’m concerned that without the threat of litigation, those resolutions will go away because there won’t be any incentive left,” she said.
She also predicted that when those federal moratoriums end, the situation for people behind on mortgages may become more dire because banks may throw them out.
“They might need to file a lawsuit to keep their family in the house,” she said.
AARP of West Virginia also opposes the bill. State Director Gaylene Miller told Senate Judiciary Committee members that 700 nursing home residents and workers have died due to COVID-19.
“West Virginia should not strip away the rights and protections of residents,” she said. “Nursing homes and other long-term care facilities should know they will continue to be held responsible for providing the level of quality care that is required of them, and for which they are being compensated.”
Priorities
Senators passed the bill on Friday by a 25-9 vote, and sent it to the House of Delegates. Two Democratic senators, Plymale and Mike Woelfel of Cabell County, joined every Republican in voting for the bill.
“This is the Republican majority giving Big Business what they want, which is absolutely immunity,” said Sen. Mike Romano, D-Harrison, in an interview.
Sen. Rich Lindsay, D-Kanawha, attempted to amend the bill so that companies that acted with actual malice could be sued, but that amendment failed.
On Tuesday, the House Judiciary Committee also passed the legislation. Republicans voted down attempts by Delegates Tom Fast, R-Fayette, and Chad Lovejoy, D-Cabell, to narrow the legislation to allow for lawsuits at least in limited circumstances. Lovejoy attempted, in one failed amendment, to amend the bill so that employers who intentionally put their employers in danger could face lawsuits.
In testimony before the House Judiciary Committee on Tuesday, Waltz advocated for protections for even those businesses who weren’t following COVID-19 guidelines, saying essential workers had to work in unsafe conditions.
Josh Sword, president of the West Virginia AFL-CIO, said it was “tragic” to see lawmakers focus on immunity for businesses during a pandemic.
“I think it’s an example of the priorities of this legislative leadership,” he said.
His union is made up of nearly 60 affiliates, including, among others: teachers, teamsters, steel workers, coal miners, construction workers, nurses, communications workers, letter carriers, postal workers, machinists and pipeline workers.
“If they want to pass some COVID legislation, how about considering hazard pay for all these front line workers, many of whom were praised by the legislative leadership and the governor throughout this pandemic?” Sword said. “Now there’s a real opportunity to step up and help these front line workers and they’re not saying a peep. It’s quiet there, quiet as a mouse in church, except that the business community comes looking for immunity and they start running that right out of the gate.”
This story has been updated to reflect the bill passing the House Judiciary Committee late Tuesday.