Transcripts For CSPAN3 Senate Hearing On Corporate Liability During The Pandemic 20240713

First will be taken advantage of. Our state and federal governments as well as our nations largest corporations have a responsibility to do what is right. And let me end by saying this, this virus doesnt care whether or not youre republican or whether or not youre a democrat. It should not be about party or politics. This is will health and safety of our nations food workers and our food supply. And as such, no company should be shielded from the responsibility for adopting irresponsible practices that foster the spread of this virus through their facilities. For the sake of this country that i know that we all love i urge you to Work Together to do what is right for these workers. And, again, thank you for your time and id be pleased to answer questions you may have. Thank you very much. Miss dixon. Good afternoon, chairman graham, Ranking Member feinstein and members of the committee. Im grateful for the opportunity to testify today. Im rebecca dixon, executive director of the National Law Employment project. It is a Nonprofit Research Capacity Building organization that has for 50 years fought to build power por workers in the u. S. My testimony is based on policy expertise and a direct connection to front line workers and communities. Worker health is Public Health. Workers rights to a healthy and safe workplace must come before profits. We could not successfully reopen businesses and Public Institutions if workers and consumers arent safe and dont have confidence in their safety. For congress to grant employers the immunity they sought it would create incentives for workers to protect workers for workplace standards and cause health and safety disasters with new hot spots across sectors and spread across communities. Lets discuss why that is true. Point one, when employers across the country fail to protect workers they contribute to the spread of covid19 into communities. Due to historic inequities this impact is uneven. In America Opportunity and risk have always been segregated and strat fied by race and gender. In fact 87 of occupations in the u. S. Could be classified as racially segregated. Even when policies have been raised silent on their face this country has done a poor job of providing eekal rights for workers of colors and immigrants. This runs from the new deal to the Great Depression and to the current economic crisis brought on by the pandemic. Though all workers on the job now and returning in the next weeks and months are at risk of illness and black and latino are more likely to be in front line jobs and among Indigenous People they have reported illness and death related to the pandemic. As detailed in my testimony, far too Many Employers were slow to follow the cdc recommendations such as the use of protective equipment and hand washing and spacing six feet apart. Let me be clear, workers are getting sick and dying, tragedies that are preventible. Beyond the obvious health care examples, there are also exam people from retail and sanitation services. One of the most egregious from new orleans where sanitation workers for fired after asking for health and safety protection and replaced with prison work release workeshes who are paid less than 2 an hour for this work. Point two the of law versus the honor system. Osha has failed to protect the health and safety of workers during this pandemic. We know workers already face steep barriers to accessing the courts and to holding employers accountable such as forced arbitration and classaction waivers and this is also true for health and safety. No part of the federal government bears more responsibility for health and safety than osha but unfortunately they have utterly failed in their mandate to protect workers. Osha has issued voluntarily employee standard and guidance which is not enforceable and failed to enforce that or the cdc voluntarily guidance. Unlike other statutes workers have no private right of action to sue an employer if they violating the act, the only resource is administrative remedy filing a complaint or request for an osha inspection. Although osha has received 3,000 covid19 related complaints to date it has issued no citation for cdc guideline violations. Exclusive exclusive remedy for workers suffering from injuries and death on the job and exposure to environmental exposure to workplace chemicals, Workers Compensation is the only remedy. The principle of the system is it is a no fault principle where workers get lost wages compensated and medical bills paid and give up the right to sue for negligence. Point three, the path forward is not immunity. Congress should join forces with workers and focus on incentives and forceable standards for compani companies to protect workers. They are focused on preventing sick workers from suing them, trade associations who lobby employers including the chamber of commerce, the restaurant association, the National Federation of independent business are pushing for legal immunity for a wide range of court Worker Protections such as minimum wage, overtime and paid leave rights. Recognizing how fearlessly workers are fielting to protect themselves, including strikes and walking off the job to protest unsafe conditions now is the time for congress to join together with workeshes and demand a Just Recovery from this pandemic that brings up all people, and others who are suffering such devastating consequences of covid19. If Congress Wants to help businesses, particularly Small Businesses, it is the best it can do is demanding that osha do its job. Congress should pass the every Worker Protection act and mandate that osha issue strong and clear and enforceable standards so that employers must follow those. This action would give much needed tool to hold employers accountable and give employers equally needed to know how to best protect workers an consumers. Worker health is Public Health. Our interconnectedness as a society has never been clearer. Thank you. Mr. Tieher is joining us remotely from fort worth, i believe. Yes, chairman graham, Ranking Member mine stein, members of the community, thank you for allowing me to testify from my home today. My name is and im from Texas Christian University and ive been a Higher Education lawyer for more than 20 years. Im testified at the request of the American Council and education, the largest Higher Education umbrella association. My oral testimony today focuses on two points. First, our nations campuses are huge economic drivers. If we want america to get back to work, our campuses must return to something close to normal administrations. Second, to reopen, our campuses as fully as state order s allow we need center around standard of care. Colleges and universities educate about 24. 5 Million Students and employ nearly 4 million americans. College campuses are the primary economic engine in local communities and economies. And to use one example from texas, the university of texas is austins largest employer and students spend another 823 million with local businesses. Here is the point. Encouraging, enabling and supporting Higher Education return is critical and essential component of reopening america. Colleges and Universities Join the rest of america in wanting to resume something close to normal operations. As soon as we can safely do so. But in reopening our campuses we face two unprecedented challenges. The first is financial. Weve already experienced enormous unforeseen expenses and revenue losses and even if we fully reopen, experts predict National Enrollment to drop by 15 . That is 23 billion. For a number of institutions this crisis already poses a threat with the potential for closure on the horizon. The second challenge we face is what this hearing is about today and that is how to reopen our campuses safely. My professor taught us that uncertainty about the standard of care creates a cliff problems. When some line that would be catastrophic to step across and we dont know where the edge of the cliff is well avoid the ground near the cliff altogether and uncertainty has a chilling effect. Reopening any enterprise is a classic problem. Were facing something weve never faced before with you know one thing for certain, if and when we reopen, virus spread is foreseeable, perhaps inevitable. So what does our standard of care for preventing covid19. There is no playbook or established best practices and this uncertainty is impacting our decision. Let me use a few decisions as an example. In the last few days uc san diego and university of arizona have announced massive testing as a part of their return to campus. Well, as prehencive of students now the standard of care. Other campuses look at extraordinary precautions an conclude they cannot possibly measure up. Some have announces they will not resume full campus operations in august. There are no current state or local orders that require either mass testing or that prohibit classroom learning into the fall. Because we dont know what our circumstances will be then. But these institutions are staying far away from the cliff. To understand the challenges facing campus, one has to understand the enofrmous scope of university and college operations. Were much more complex than classrooms and students. Running a campus is like running a small city. Many universities operate full Service Utility companies and operate u. S. Systems and employ police forces. Universities are landlords providing houses to millions. Were in the food service business, we own and operate retail shops and Convenience Stores and coffee shops an book stores an we operate Health Clinics and Health Centers and gyms. Operating health care systems, outward facing clinics, day care centers, Laboratory Schools an were in the tourism and entertainment business. Hosting sporting events and concerts, theater productions and debates. For example tcu owns and operates two of the largest venue in fort worth. The university of mississippi, my former employer operates the loke after airport. Unlike other businesses if a face questions about the standard of care for reopening a single economic activity, we have to determine how to reopen many lines of business. We do not face a single cliff problem but scores of them. The bottom line, in what circumstances will institutions be held liable when people are exposed to the virus on campus . That question presents quite a cliff. If the senate wants universities to reopen in the fall to the fullest extent allowed by local and state authorities, if our country needs its colleges and universities to walk toward that cliff then we need your help. We need you to clearly define the edges of the cliff. We need centrtainty that we cou reopen without fear of liability for spread of the virus. We do not seek complete immunity or suggest protection from gross negligence or bad acts or seek other broadcast protection from tort duties, rather we seek targeted protection from liability from some yet to be defined standard where i institutions have complied with Health Orders and should not be exposed to liability claims related to illness. Without this certificate an ty we cannot and thank you for your final and attention and i will answery questions that you have. Professor vladdic. Yes. Thank you. Chairman graham, Ranking Member feinstein and members of the committee, thank you for asking me to participate in todays very important hearing about liability rules in the reopening of our economy. My name is david vladdic. I teach at georgetown law school, mostly litigation related courses and i spent more than 40 years as a litigator mostly in state and federal court. Like all americans, i am anxious to get the nation back on its feet. I applaud the committee for exploring ways, facilitate that process and i could only imagine the heavy burd than weighs on your shoulders. As my testimony makes clear, businesses like mr. Smarts that act reasonably to safeguard employees and the public are already protected from liability. It is all of the panelists have said, the urgently need of sciencebased covid19 enforceable guidelines from our Public Health agencies. Those guidelines not only safeguard the public, but at the same time they provide the standards of liability that mr. Piner was just talking about. Compliance with those guidelines would eliminate any liability risk. On the other hand, it would be counterproductive for congress to take the unprecedented act of bestowing immunity on companies that act irresponsibly. Workers and consumers are going to open this economy, not governmentsponsored immunity. We all know that large segments of the public are still justifiably fearful about reopening. Granting immunity would only feed those fears. Immunity sends the message that precautions to control the spread of the virus is not a priority. Even worse, immunity signals to workers and consumers that they go back to work or they go to the Grocery Store at their peril. Why . Because congress has given employers and businesses a free pass to short change safety. There are only two ways that government protects its citizen from irresponsible conduct. Regulation or liability rule. We have have not gotten from our government regulations or specific guidance on how to safely contain the virus. We dont know, given whats going on today, whether we ever will. But in that absence, congress has moved to significantly weaken the Liability System would leave the public with inadequate safeguard. Now, some have suggested that instead of blanket immunity, congress should give immunity to only those who engage in anythi negligent or irresponsible conduct not reckless conduct. That idea should be redacted first because it trivializes serious risk. Irresponsible conduct labeled by the law as negligent conduct kills and injures far more people than wrongful conduct the law labels as gross misconduct. Drawing that line also makes no sense because it is an unworkable standard for several reasons. First, the line between unreasonable or negligent misconduct and gross misconduct is murky, context based and fact dependent. Any tort claim can constitute gross negligence depending on the wrongdoers state of mind. Differentiating between the two tiers turn on intent questions of intent. Questions of intent are factual questions for a jury, not a judge to resolve. Conduct is labeled negligent or grossly negligent only at the end of a case, not at the outset. In other words, we dont know for sure whether conduct is grossly negligent until the jury says so. Third, and most importantly, the difference is utterly meaningless if we care about containing the spread of the virus. Irresponsible acts spread the virus just as easily, just as effectively as reckless acts. My written testimony makes a number of additional points. One is that legislation simply displaces state liability laws is not only unprecedented, it is likely unconstitutional. The other point that i make and other witnesses have emphasized is that the best way to ease potential liability risk is for our expert Public Health agencies to step up and to issue sciencebased specific guidelines on how to address the pandemic and reopen our economy safely. I look forward to answering any questions you have. Again, wasnt to thank the committee for holding this very important hearing. Thank you. Thank you, sir. Finally, miss hill. Chairman graham, Ranking Member feinstein, members of the committee, good afternoon. Im helen hill. Im the chief executive office of explore charleston. Im here to represent 850 tourism and nine governments in South Carolina. Today i hope to share with you a current Broad Perspective on tourism in the United States. I have great concern for our tourism industry. Im here today to ask for your help. Our industry has been devastated by this covid19 pandemic. In 2019, 15. 8 million jobs were supported by the travel industry. Over half of those jobs, 8 million, have been lost. Sadly, were on track to lose half a trillion dollars in spending by the end of this year. These numbers are truly overwhelming and represent a total Economic Impact nine times greater than we suffered after the 9 11 attacks. Recently, we have all missed traveling. We have missed weddings and anniversary trips and birthday parties, our childrens spring break. This month, were going to Miss High School and wecollege graduations. Traveling is a hallmark of our freedom. We travel to recharge, enjoy time with loved ones and to learn and experience different cultures. Travel opens up our eyes to the wonderful beauty of our country and brings us into community with others. As our elected leaders, you all have a front row seat in what makes america special. Senator graham, it always gives me such great joy when invite guests to come to charleston and my team gets to show off what makes South Carolina great. Senator feinstein, i know you must feel the same way about your beautiful hometown of san francisco, my second favorite city. Each of you on the committee have a favorite goto hotel, a treasured restaurant that has just your favorite dish. A really important attraction, a great historic site. Those things that make your state so special. We dont want to lose those businesses that give america our unique character. In the past several months, i have never been more proud of our travel industry. No matter the size of the travel business, the health and the safety of all of the employees and guests have been put first. Businesses closed or emptied in the interest of Public Health. Now were working to ensure that they can reopen. Reopen in a way that protects the health of their employees, their customers and the broader community. The u. S. Travel association of which im a board member convened a task force of travel Industry Leaders and Health Experts to create a set of health and safety guidelines. These guidelines align with the recommendations from the cdc for the reopening of america. We understand that without guidance to promote health and safety of travellers, there can be no travel, no reopening of businesses and no revival of our economy. Right now, the most important thing our travel businesses can provide to our communities is to reopen responsibly and put americans back to work. If these businesses take the necessary steps to protect the health of the employees and the customers, there must be protections put in place to allow them to reopen with confidence. To that end, we are seeking Liability Protections for businesses that are limited, that are temporary and put in place as soon as possible. These protections should be limited to those american businesses that are reopening in accordance with the safety and Health Guidelines and acting in good faith. These measures should be temporary to protect responsible businesses from frivolous lawsuits during this pandemic and through a period of economic recovery. It is important these measures are put forth immediately. Without implementation immediately, these businesses may delay the reopening and further delay moving our economy forward. We cannot afford this lack of confidence or delay in americas recovery efforts. We simply ask for these measures to protect businesses in making a good faith effort to reopen quickly and responsibly. As our nation prepares to emerge from this Public Health crisis, i would like to thank each of you for your leadership. I am always thankful to be an american. During this crisis, i have been especially thankful. Our american spirit is strong. Thank you for convening this important hearing and we look forward to working with you to establish protections that allow our travel industry businesses to reopen with confidence, to help power our economic recovery and to bring back the joy of travel in the United States of america. Thank you all. Very well done. I will start. Try to keep it to five minutes, because i think we have to leave at 4 30. This question goes to everybody. We will start with mr. Smart. Do you believe the country would be better off if federal agencies like osha issued guidelines industry specific as to what the best Business Practices are in terms of stopping the spread of the virus and protecting the work force and public . Can you hear me . Yes. I think its a great question. I would say from my own experience and my teams own experience that one of the challenges has been i guess the varying degrees of information that was there. The answer would be yes . I would say yes. Mr. Preno . I hate to correct you, but its perone. Im sorry. You have ever right to correct me. I do. I do think it would be better if we had specific guidelines that were connected to the cdc guidelines, yes, that were enforceable. Miss dixon . I agree as well. This is going to be the only way we can protect workers and they have something to hold employers accountable to, the ones who arent following rules. To mr. Tyner. Thank you. From my perspective, the challenge here is we dont have clear guidelines and rules. So we dont foe the choices were making are the right. The answer would be yes . Yes. Professor vladik . Yes. I agree. I think that clear guidelines from federal agencies will provide whats called a Regulatory Compliance defense if anyone is ever sued over cov covidrelated incident. Miss hill . Yes, sir. We found common ground. Thats the regulatory side. I think what i will do is pass this up to the food chain to the administration that the sooner we can come up with a regulatory osha driven process to allow big, small, intermediate businesses, essential workers, just the country in general, the better off we will be. On the liability side, count me into the idea that we need to give people notice of where the cliff is. Theres a bunch of lawsuits been filed. Im not trying to replace tort systems. But you cant have it both ways. You cant ask the federal government to give every state in the nation bunches of money to make up for the revenue loss, you cant ask the federal government to come in and supplement unemployment benefits, which i gladly did, you cant ask the federal government to create the ppp Paycheck Protection Program and say we got no business in the oce other arena, which is how do you safely open up businesses, how do you protect people from being driven out of business by unnecessary lawsuits. I guess the goal is to define limited Liability Protection and time and scope to deal with a covidrelated reopening of the country and to do so without rewarding bad actors. Thats the challenge. Professor, i take it you believe that cant be done . I dont believe it can be done. I dont think its wise to do it. Thats fair. The question really is, what level of protection are we going to provide the public . If you want to reopen the economy as we all desperately do, you have to give the public assurance. Right. Thats fine. Im going to ask everybody else the same question. I put you down no, we shouldnt do that. Yes, sir. Thank you. Mr. Smart . From your point of view, how necessary is this . I do think its necessary. Thats why im here, sir. Its one of the things that i you have done it as good as anybody could hope to do it. But i havent been perfect. I dont think everybody can do what you did. Hats off to you. Even as much as i have done, if i dont have certainty on the lawsuit side, i may lose everything i have gained. Do you agree . I would agree. What are you asking this committee to do . Im asking for a limited time Liability Protection for businesses. Im not looking for bad actors or people that were even though grocery negligent, but im looking for some protection that would limit exposure during this pandemic. Mr. Say your name again. Perrone. I have dana perino on my mind. I understand your question. I want to add a little different. Bankruptcy is not a good option for the worker, is it . Bankruptcy is not a good option. What i want us to do is make sure that we dont go into bankruptcy any more than we have to. Some people are going to go bankrupt just because the demand wont be there. But im trying to protect companies from going bankrupt. Unne from lawsuits that go too far. Do you believe its possible to navigate what i described . I believe that if you give protections to the workers, solid protections, through the regulatory process, it is possible. Fair enough. If you do the same thing. Im with you. You cant give protection to one and not the other. That actually makes sense to me. Senator feinstein. Thanks, mr. Chairman. Some believe that they will be sued by employees or customers who contract coronavirus, even if they comply with Public Health guidance and take other reasonable steps to make their businesses safe, that is if businesses are allowed to continue. But how the coronavirus spreads, how could a customer of a well, given how it spreads, nobody really knows, how could a customer of a particular business prove they were infected at a particular business . If the professor could respond. I believe he is our Legal Counsel here. The answer is, they cant. The virus is so transmissable that its very difficult unless you have a situation like you have had in the meat packing plant to know where the virus comes from. In new york, one of the findings was even people who had been housebound for a long time contracted the virus. Even though they hadnt gone out. Part of the reason why there have been almost no tort cases about covid19, people have bandied about figures, but the truth is there have been almost none of the cases. They are likely to be few because in order to plead a case in court, you have to be able to show causation. If someone who is out and about walking on the streets, visiting the Grocery Store, visiting another shop contracts virus, theres no way in the world theyre going to be able to say, you know, its mr. Smiths fault. It hasnt materialized. Let me ask you this question. Is there precedent for broadly immunizing businesses from liability . No. This is not like preemgs. Early early on one of your colleagues said it would be preemptipr preguiprbepre bepreex this would wipe out Liability Regime. What would the consequences be if we passed this bill and if it were to become law . Most torts what constitutes gross negligence rather than negligence would not be actionable. Irresponsible conduct, conduct people know is bad but dont really care about would go would not be subject to litigation. The cost of all of those accidents, the cost of the injuries caused would be bjorn by the wo born by the you are getting above my pay grade. My pay grade is simple. What you are saying is if this bill became law, there would be no liability . It would be hard to prove liability. Theres no line between gross and negligence. Either it would mean nothing or it would mean everything. I missed that. Either it would be nothing or . Or everything. It would black out everything. The courts would be in a conundrum. The line between gross negligence and regular negligence doesnt really exist clearly until you try the case. The courts would assume that congress was trying to achieve some kind of serious Liability Protection. Are you saying dont pass the bill because of the liability . Im saying, dont pass this bill because the best way to protect the public and businesses is to do what chairman graham just suggested a moment ago, which is to force our Public Health agencies to provide specific detailed sectorrelated guidance about how to reopen this economy safely. If mr. Tyner and mr. Smart and the other businessmen in the wor world follow those guidelines, they are protected from liability, as they should be. Thank you. Thats helpful. I promise you, we wont pass this bill, because there is not one yet. Senator grassley. For mr. Smart and miss hill, i will start off with a word that chairman graham used, the need for certainty in your business Decision Making. Id like to hear more about businesses Decision Making process, especially with regard to opening their doors for customers and employees after situations like we have today. Can you two explain in more detail how the mere threat of lawsuits impact a businessowners Decision Making in the midst of this pandemic . Sure. I will go first. I think with any uncertainty for business, any time you are looking at potential cost and or threat businesses are wary and would look hesitantly at investment and or any kind of future endeavor without certainty. You know, when we look at this were i guess thinking about more current time. Were not thinking about in the future. Thats why i said in my opening statement, im thinking about this as a very temporary protection. Just to give us some assurance were still today down 35 in fuel volume and 10 inside. The uncertainty of the future is still there for us. As we evaluate what other things are there, we have to take that into consideration. Miss hill . Yes, sir. One of the things that we have seen in charleston is really fear, really great fear, particularly from our Small Businesses. As you well know in each of your home states, its those Small Companies that give the unique character that people come from around the world to enjoy as a destination. I think that was the reason we wanted to talk about it from a limited in a very limited way, temporary and as fast as you could put it in place to give them the confidence that they could move forward and open their doors following all those safety and health procedures. Id like to sum this up by asking a followup question. Probably yes or no. Mr. Tyner could jump in as well. You two plus tyner, would you three agree that predictability in the legal system relates to our economic recovery from the pandemic . I would say so, yes. Yes, sir. Mr. Tyner, would you like to come in to that . Yes, sir. Absolutely i agree. In a typical im going to smart, hill and tyner on this one. In a typical negligent lawsuit such as slip and fall, issues of causation are proving that one thing led to another can be straightforward. With a global pandemic, however, theres more difficult in proving that someones exposure to the disease happened in one place instead of another. So question to you, would clarity from congress or the states will it be difficult without clarity . Will it be difficult if not impossible for businessowners to prove that someones exposure didnt happen in their premises . Arent they at a disadvantage without further clarity of law . Yes, sir, i would say they are. Yes, sir, they are. Mr. Tyner . Yes, sir, absolutely. We need rules. Thats what were asking for about return to work. This will have to be my last question to mr. Smart. If you are considered an essential business, it seems like you have had no choice but to stay open and bravely serve the public throughout this unprecedented situation. Can you speak a bit more to the risks, whether financial or otherwise, your business has been exposed to in being designated essential service during this time . Yes, sir. First of all, we think its a blessing that we were considered essential and we were able to keep our doors open. It was a daily, weekly conversation since we do serve a lot of very Rural Communities and we are maybe a Grocery Store for the community and a little pharmacy. Were the one stop. So we had to have conversations as we started going through this and watched ourselves diminish as to how long would this go on and how long would we continue to operate given the crisis. So we did have conversations. We did make the decision to keep them all open. We did take a few stores that were 24 hours and take them from 24 to, like, a 16hour day. But we were fortunate enough to keep them open and continue to serve our communities. Thank you. Thank you. Senator leahy . Am i on there with you . Chairman, can you hear me . Never looked better. You can hear me . There you go. As i said, you never looked better. I had a feeling that was case. My first year in high school, i read upton sinclair. That was written 100 years ago. Now 100 years after that, horrible description they had. 10,000 meat packing workers have been affected by covid19. Reports of is Assembly Line workers reluctant to cover their mouth because they are afraid of disciplinary action for missing. Not all meat packing plants are bad actors, of course. I think bad actors should be held accountable. In one case, you had a missouri meat packing plant, suit was brought for unsafe conditions. Within weeks of bringing the suit, they basically they were going to make changes. My question is to mr. Perrone. Why are lawsuits an important instrument to compel bad actors to change their behavior . Thank you, senator. I think in the absence of clear, enforceable regulations, when the workers dont have an avenue to go through the regulatory process, that is the only way that they can, in fact, challenge whats taking place inside a facility. Thank you. Theres not that much of an incentive for them to do the things they should do. I know we have a certain time. I was going to ask miss dixon, some people talked about this wave of covid19 litigation as a justification for corporate immunity. Only 6 of covid19 related lawsuits are tort related, seeking immunity for 6 . The corporations claiming they need this immunity often ones that subjected employees to mandatory arbitration clauses that we know goes almost always favor the employer. Miss dixon, could you tell us how the prevalence of mandatory arbitration clauses actually within or across Key Industries impacts likelihood of a socalled wave of litigation. Yes, senator. I would say the wave of litigation is actually mostly businesses suing other businesses. Businesses trying to enforce insurance contracts related to the pandemic. Thats one important thing to put out there. When you have forced arbitration, you must go through a secret process with an arbitrator. You are barred from going to court. Employees are being coerced into signing these if they dont sign those, they dont get the job. An additional shield against lawsuits, redundant . Correct. Thank you. I have very, very good friends democrats and republicans, but i hear from my republican friends all the time, they pride themselves on being states rights advocates. We are not hearing about that today. 19 states have passed legislation or executive orders to deal with covid19 related immunity issues. More than a dozen others have proposed changes to their laws and regulations. Why would you want to have a one size fits all to shield bad corporate actors from accountability . Wouldnt it be wiser to let these my friends who say we should allow states rights, let that go on. Are we still on . What happened . I think my chairman didnt like my question. No, no, no. I think its the russians. Thats a good question. One last question. Being a graduate of georgetown, i do want to ask the professor a question. Most red and blue states are working to address covid19 related immunity issues. Wouldnt it be better for the states decide the best way than to have a blanket overriding our states right now, federal law . I completely agree, senator leahy. Particularly since it is the states that are on the front line of fighting covid19. They know whats going on in their own states. If there are Liability Protections that are needed, as you pointed out, some states have enacted those. This is not a situation where Congress Needs to be the decider. The states have always developed their own liability rules. Theres no sense now for congress to step in and to change that. In fact, the states the companies are trying to follow their states law, now it becomes confusing for them. Is that correct . Thats correct. Thank you very much. Thats why i enjoyed going to georgetown law school. Thank you very much, senator leahy. Senator tillis. Thank you, mr. Chairman. Before anybody watching this thinks im wearing an ascot. This is my mask. I appreciate you having this hearing. I wanted to first ask im sorry the name escapes me right now. Its the gentleman representing institutions of higher learning. Mr. Tyner. Mr. Tyner, im sorry. I was trying to get at my notes. Im multitasking. I spoke with my University System president and some chancellors last week. They already have about a half dozen lawsuits alleging at least in a couple of cases that the student was harmed because they had to complete their courses through video and were not allowed access to the classroom. Have you with any of your colleagues seen any kind of an increase in those kinds of cases . Yes, senator, thank you for the question. Last i checked, there were about 50 lawsuits like that. Many of them class actions seeking some remedy against universities in that context. When the universities were following local orders. So thats a great example where were not really looking for a federal standard about liability. Were asking for us to have a safe harbor if we follow local rules, we wont have a problem. Thats i think, first, professor, i agree with chairman graham that theres not a bill that were asking you all to analyze now. Theres a potential issue that were trying to strike a balance. I was speaker of the house in North Carolina. We passed tort reform. Yes, sir, senator leahy, i believe that this matter should be largely left to the states. But now if we take a look at even the evolution of guidance that we have gotten, either from the covid task force, cdc, maybe from osha in the future, the states and in my state of North Carolina 100 counties and over 550 municipalities, i think all im trying to do is figure out get someone who has taken reasonable steps from being a subject of several lawsuits. After you made the comment of virtually no cases have been filed, i had my staff look it up very quickly. It looks like since the first part of march, we have had almost 130 class action lawsuits filed related to one or another matter of covid. Then i went on the internet and i just did a quick search for covid legal services. I got nearly 300 hits without even refining it. So im trying to strike a balance. I understand what you are saying, but i do believe theres a lot of complexity out there. If we dont get this right, its going to have a chilling affect on the very people that some of the witnesses have testified they are looking out for their interest. When a business goes bankrupt, those employees are on their own. We have over 30 Million People unemployed, over a Million People in North Carolina. If we dont figure out some way to provide certainty to these businesses, how would you if you were advising a client that may be maybe its a Meat Processing process thats 50 down because they cant figure out how to implement social distancing. What would you advise a client if you are in one of the areas that are potentially high touch environments . Open up business and kind of hold my beer and watch this . What would you advise . The answer i think is the answer that many of the other witnesses have given, which is we do need real guidance. Enforceable guidance by the federal government. If the federal government enacts regulations or guidance thats enforceable and meat packer or mr. Smart complies, its a Regulatory Compliance defense. Every state recognizes that defense. In many states, its an affirmative defense. If North Carolina wants to say if you comply with federal guideline or state guideline, you have an immunity from liability, thats not that different than the common law today. Thats not the federal government stepping in and saying to every state, here is the Liability Regime you need. Regulatory compliance is a very powerful defense based on the quality of the guidance. Where it comes from, is there an Expert Agency . Lots of cases in North Carolina and elsewhere where tort cases fall apart because a business like mr. Smart says we have done everything reasonably a reasonable person can do, and it also coincides with the guidance that we have received. I think thats the ticket ourt out of this liability crisis. The cases you are looking at are businesses challenging insurance agencies who are not honoring their coverage. There are a lot of cases that are business to business cases. There are going to be tons of fraud cases. Im worried about fraudulent marketing of covid protective devices and supplements that claim to protect you against covid. I dont think a bill from congress is going to solve these problems. First, i dont think were looking at an omnibus. The last thing i would leave everyone with is in North Carolina, 80 of all the jobs created in North Carolina are created by Small Businesses. Some of them have spent thousands of dollars, ended up winning in a case that should never have been brought against them. We are trying to narrowly tailor to covid so we dont have hundreds of thousands of dollars for a Small Business thats already closed to be confronted with a 5,000 or 10,000 legal bill to defend themselves could be the difference between opening the doors and bringing their employees back. Thank you, mr. Chair. Thanks. Senator durbin. Thanks to the witnesses. Why are we here . Were here because senator mcconnell announced this was a red line issue. This issue of liability in the age of covid19 is a red line issue, which he said was critical if he was going to support the next covid bill, covid 4. Senator mcconnell went on to say in another separate interview that when it came to the state and local governments, he thought bankruptcy was an option. I can tell him that i dont think its a very wise option for america, for the policeman, firefighters, paramedics and others to face dramatic cutbacks in those who are working and cutbacks in pay for those working. This morning when he was on the floor of the senate, he addressed this particular issue. Frivolous lawsuits in the age of covid19. He characterized them as an epidemic, a legal liability mine field. He went on to call them a tidal wave of lawsuits. I looked up the numbers. Let me tell you about senator mcconnells tidal wave of lawsuits that bring us into this hearing. So far, 958 covid related cases this year. 27 of those cases were personal injury lawsuits. Nine medical malpractice lawsuits. The others, 264 were over the conditions in prisons, 171 were insurance battles as to what the policy means. When you consider that we have had 1. 3 million americans diagnosed with covid19, the fact that only nine lawsuits have been filed, whether frif frivolous or serious, does not suggest a tidal wave of lawsuits. Instead, i think we get back to the point made by the chairman. How can we address this in a responsible way . Nine medical malpractice lawsuits, 1. 3 million infections. The numbers that ought to stop up cold are the numbers mr. Perrone gave us. I have a bias toward you as you know. My first Union Membership was in one of your unions, working in a Meat Processing plants in east st. Louis, illinois. When you tell me that 162 of your members working in Grocery Stores, food processing, Meat Processing, 162 of your members have died and 25,000 have been infected, those are numbers which stopped me cold. I know what that was like when i worked there in college, 12 months in the packing house. Its a hot, dirty, dangerous job on a good day. It hasnt changed much over the years. These workers elbow to elbow, facing a Conveyor Belt with meat or poultry coming at them as fast as humanly possible. Its just not a good place to deal with social distancing. Thats for darn sure. I would like to go to mr. Smart for a minute and say, i took the time this morning because we had more time on our hands to read your testimony in full. Before we came together. Im impressed. National association of Convenience Stores that i worked with in the past picked a great witness. The story you told about what you were doing in your businesses at this point is impressive. You obviously give a damn about the people who work for you and the customers that come through your doors. Just the list of things that you have done. Here is what you said at one point. On page 7. This was a challenge because the guidance provided by cdc and osha as well as state and local governments often conflicted with one another. In addition to being vague and difficult to follow. Despite the many uncertainties, including the constantly fluctuating Public Health guidelines, we began to adjust to the pandemic. This is a point made by the chairman. We have to have reasonable standards that make sense in the age of covid19. So that when you decide whether to put those hand sanitizers or plastic shields and such, theres guidance behind it. Thats not just your effort in good faith to deal with it. It is your defense when somebody said you did nothing. You did. You complied with the guidelines. Thats where we have to go with this, mr. Chairman. I dont think thats where your leader started off thinking we would be. Let me ask this question, if i might, of the witnesses here. Mr. Smart, if we can come up with some guidelines and standards that are science based, would that help you in making decisions what to do in your business so that you can save to the world, we have done what we were supposed to do . Senator, yes, thats a great question. I would say yes. Maybe my understanding of this is off a little. I guess when i hear the conversation about specific guidelines from osha or cdc, whoever that body would be, i guess i look at past what we have been in, what we followed, what we could be liable for from not having proper guidelines and whats going on and still right today theres no guidelines, today were operating businesses today, so were still liable today. How long does it take to get those guidelines . For me, when were asking for temporary, were thinking temporary through this unique situation. I wish this hearing was entitled, why has our golf failed to produce science based standards of safety and Healthy Business environments in this age of covid19, thats the question. I think we can give you these guidelines. If you show a reasonable effort to comply with them, my friend, i believe you have a defense to most lawsuits that might come your way. Taking the temperature, giving the test, and then a Workplace Environment that is established by standards as safer for employees, isnt that what the goal that you are searching for as well . Absolutely, senator. Thats the goal that were searching for. Uniformity. I would just close by saying, mr. Chairman, i dont believe we have a bill before us, despite all the conversation. We should. I would caution as the professor from my old lawsuit said he wasnt my professor but teaches where i went to school. This definition of gross negligence gets very tricky. Everybody said were not trying to protect bad actors. Bad actors get off the hook under gross negligence. Its the worst actors, only they will be liable under a standard of gross negligence. If we can Work Together on a bipartisan basis, i think theres room for improvement. I think so, too. Just follow up, i want to find out where we are at today, where we need to be tomorrow and how we handle opening up. Up to right now, states have general guidelines. I guess they vary state to state. Theres general direction from the phase one, two, three in opening up business. If you are a business person out there right now, you are doing the best you can in no mans land. I think mr. Perrone, you are dead right. The best thing we can do for your work force is tell the employers what they need to do to protect workers and hold them accountable if they dont. Count me in for that. We have to somehow flip this switchback on and find some Reasonable Solutions to the limit that employers face really not being told what to do. We have to start telling people what to do. Senator lee. Thank you very much, mr. Chairman. Thanks to you for being here. This is an important topic. Were going through a difficult time in our country. Something we have never experienced in quite the same way. Its important for people to have confidence in being able to go back to their places of work, back to school. In order for those who run our schools and businesses to do that, they want to know what the risks to them will be. Medically, economically and otherwise. Its essential we not forget in this moment structural separation of powers thats found in our constitution. Particularly the vertical separation of powers is embodied in federalism. The notion that most of our laws apply at the state and local level. There are a few laws that by their nature need to be federal because of their necessarily and could be s constitutionally national nature. The fact we like a particular policy doesnt make it federal. The fact that we might like a particular policy a lot or deem it essential still doesnt make it appropriate for federal determination. If we set this aside, we will be doing significant violence it our constitutional structure. Its important to remember that here also because what caused a shutdown, what caused people to shelter in place or required individuals to stay at home was not made at the national level. These decisions were made at the state and the local level. Appropriately so. With those people making those decisions, every one of those decisions involves a tradeoff. A set of considerations involving a complex matrix of health and safety requiring people to understand the fact that there is no tradeoff thats easy here. If we order everyone to stay at home indefinitely, that has costs not just in economic terms but also in terms of human lives. Given what we know about who is going untreated for certain medical conditions. My point is this. When these decisions are made, either to direct people to stay at home or to tell them its safe to go out, those have significant Public Policy ramifications. Tort law has always been a creature of the states. It is not a creature of the federal government. As part of the calculus for moving forward, gary herbert, the governor of utah, signed a law providing businesses with extensive protection from covitd covid related liability unless it was caused by the reckless inflection of harm. If other leaders provide for businesses and choose to proindividuprovide people with similar protections, they may do so. The fact that we may like or dislike that policy doesnt make it appropriate for federal legislation. Where then in all of this can the federal government play a role . How can it do so without encroaching on federalism . One possibility is something that could be found in allowing for minimal diverse jurisdiction in federal courts. By establishing early covid related federal precedence, we can provide a road map helping businesses and states as they navigate any potential reopening. I have championed the idea that the ability to remove a case from state court to federal court based on diversity jurisdiction should be expanded. Allowing forval even with minimal diversity. Even where not every plaintiff is residing in a different state than every defendant. Federal courts should have jurisdiction over lawsuits. Any litigant from one state and an opposing litigant in the opposing litigant from another state. In 2019, i introduced a bill to do that. The federal court access act. Professor, do you agree modifying the removal statute so that federal courts can hear civil liability cases involving citizens of different states would help businesses better navigate the legal risks of reopening and operating during the covid19 Health Emergency . All right diversity cases can be removed provided that the defendant is not a resident of the state. There have been other waivers of complete diversity, particularly the statute passed years ago. I dont think theres a violation of getting to minimal diversity. No diversity would be a problem if theres no federal question. What about in diversity jurisdiction cases, if we were to supplement the substantive state law of the host state to the extent necessary to provide a degree of protection for businesses, could we do that . In other words, theres no federal common law. Thats correct. Would we constitutionally be capable, if we chose, to supplement the state substantive law to that degree necessary to create a safe harbor for covid19 . I dont think so. I think unconstitutional because both for federalism grounds i dont think the commerce klaus wou clause would allow you to do that. Theres due process problems wiping away liability laws without some other form of substitute protection. I lay out what i think are constitutional limits imposed by the court in its more recent federalism cases, including nfid versus sabilus. I dont see a basis for Commerce Clause jurisdiction to wipe away without substituting some sort of robust federal program instead. Im out of time. I would love to talk to you more about this, professor. Im not sure what the right answer is. It seems to me if we were to do this in a way that modifies diversity jurisdiction, im not sure we have to rely on the Commerce Clause. I think we have authority to deal with diversity jurisdiction separately. Mr. Chairman senator cornyn will ask. Senator whitehouse. Thank you, chairman. Let me start by thanking mr. Perrone and his food and commercial workers. There are a lot of people staying at home in rhode island pursuant to our governors order. As a result, it seems our new cases have crested. We seem to be stabilizing. We have started to announce beginning of a reopening strategy. Through all of this, its been ufcw workers who have made it possible for our groceries and so forth to continue to flow. They have done so at some risk to themselves, particularly early on when they didnt know how contagious this was. Mr. Perrone, a big thank you to you on behalf of the people working in rhode island and the country to whom we owe a lot. If you are a Small Business and you are trying to figure out how to open safely, it seems to me you want to have somebody who knows what they are talking about tell you how to do it. So you look around for guidelines. You look around for a standard of care of a checklist you can go through. Sadly, thats what we dont see. Apparently, there was cdc guidance on reopening. But i have never seen it. The reason i have never seen it is that it was rejected by the white house. So somebody at the cdc was told it would never see the light of day. I dont know why you would want to have standards of care never see the light of day. You go over to osha, where occupational safe and health gets done and there are no formal covid regulations. Mr. Smart described regulations as vague. I have looked at the website myself. They are extremely weak and vague and nonenforceable. If you go around to the states, in rhode island, we have Rhode Island Council for occupational safe tnd safety and health. They work with osha around the country. They have been given no guidance on this. Theres a whole network for propagating standards of care that can guide businesses to reopen safely and its never been deployed. Where it tried to deploy itself, its been shut down by the white house. Let me ask the professor, if there were a federal standard of care that osha or cdc had promulgated and the business had conducted itself in accordance with those standards of care, would that be a Legal Defense to a liability claim . Yes. In every state recognizes Regulatory Compliance defense. Yes, sir. To quote mr. Tyner, we need rules, thats what we are asking for. What i see shehere is a catastrophic failure of the administration to profoupound t guide businesses how to offer up safely. To cover up that failure in lieu of doing that work, were now being told we have to vote for a giant immunity blanket, a giant amnesty for people who could be very bad actors. We dont know because we havent seen the bill. But the point that i would like to make is that the businesses are asking for standards. The standards provide a Legal Defense. As mr. Perrone i think would be the first person to say and to recognize the standards actually save lives. Thats what this is about. You get people complying with good Safety Standards, lives will be saved. I join senator durbin and chairman graham in what seems to be a very bipartisan push to get the darn standards done and quit goofing off. This is time to do that work. The other issue that we bump into is insurance. If you are an employee and you get coronavirus at your place of employment, thats a compensable injury . It would be under Workers Compensation. Workers compensation. If you made employers immune from employee claims, what you would be out and subsidizing workers compensat n compensation. It might well do that. And Many Companies have liability coverage for when theyre sued and if you immunized injured people immunized their liability then you have liability insurers who are getting a windfall. That is correct. And given that there arent adequate federal standards of care and guidelines one of the places people turn is to their insurer. We have beacon mutual that sends people out all the time to work places to inspect and advise about how to maintain a safe work place so there arent claims. Why would a Workers Compensation insurer do that if they had blanket immunity . I suppose they probably wouldnt. It would not be an incentive to do it. And not only would this legislation, if it provided blanket immunity, create windfalls for the Insurance Industry but it would eliminate an alternative source for standards of care and for direction through Small Businesses given the failure of the administration to provide these. Senator whitehouse, we need to wrap up. Im sorry. Am i over my time . I cant see the clock. I apologize. Consider me wrapped. Thank you very much, senator. Thank you very much. Senator hawley . Thank you for all the witnesses here and those available virtually. Professor vladeck, can i come back to you. I would like to ask, if i could, this question on the constitutional limits on the federal governments ability to preempt or otherwise replace state tort law rules. Can we just talk for a second go the geyer case. Consistent with geyer that the federal government establish a uniform standard of care when it comes to covid19 treatments, precautions, and provide an exclusive federal remedy. What do you think about that . Well, thats closer to geyer, yes, because at least you had the National Traffic safety act through d. O. T. Regulations providing the public a high measure of safety determined by an expert federal agency. If, in fact, you had enforceable regulations by osha about how meat packing plants ought to work, thats a standard. So that doesnt raise a constitutional issue, but what would be proposed here in an immunity bill is not its not thats not preemption. A preemption is a matter of the supremacy clause under article six. Its not the Commerce Clause under article two. Your point, professor, if i understand you, in order to be constitutionally valid you have to replace one remedy with another set of remedies. If youre going to, you can mandate a remedy, a federal remedy for that or some sort of mechanism for that. Youre saying what could be problematic if you just get rid of the state remedies and replace with nothing. Am i understanding you correctly . Thats correct, thank you. Let me ask you while ive got you, controversy, let me ask you this, just a question about the mechanisms, the way that these cases for harm might come to court. In your opinion is it likely that there will be cases that will meet the commonality and at this point kalt requirements for class actions . Will we see a lot of those, do you think, or more likely to see tens of thousands or hundreds of thousands of individualized cases . Do you have any sense of that at this juncture . I dont think youll see thousands or tens of thousands of individual claims. The real problem is, and senator durbin made this point much more eloquently than i can. You have 1. 3 million americans exposed to the virus. You have a tiny handful of tort cases. Why is that . The plaintiffs injured in causation. Its difficult in Contact Tracing to figure out where the source of the virus was. As a practical matter the 1. 3 Million People that have already had the virus, theyre not likely to be able to sue anyone for causing their illness. I push back there will be tidal waves or tsunamis. There will be a lot of business cases, Insurance Coverage cases, a lot of fraud cases. I dont think there will be tort cases unless we get an effective Contract Tracing regime. Let me ask you this, we both know that the time line is quite extended by the time that a case comes to trial, if it actually gets tried, if its a class action by the time the class is notified. Im wondering if you have a view, if there are better legal mechanisms to compensate deserving folks in a timely manner without the enormous costs and delays that come with mass litigation and by mass i mean not necessarily hundreds of thousands of individual cases but litigation on a large scale that will take quite a long time and could involve a large number of people. Well, the people, i think, who have the best claims are the first responders. And weve always tried to mitigate the harm to families, the first responders, the 9 11 fund. I think for those who dont have viable legal claims we should do something for them and their families. If an immunity bill is passed, one essential component will be some form of robust compensation fund. If the decision Congress Makes were going to wipe away liability for the nations good, the nation ought to substitute. Akin to that. Or Something Like the 9 11 fund, yes. Very good. I see my time has expired. Thank you, mr. Chairman. Thank you, senator klobuchar . Thank you very much, mr. Chairman. I want to thank you, mr. Perrone. I got to know a lot of your workers, your members over the last year and i remember us meeting with a big group of them in michigan and i just cant imagine what this is like for you personally losing 162 of your workers and what its like for their families. I want to thank you for being here today. I guess i would start with that. This virus has hit our frontline workers, hit people of color in numbers that are extraordinary when compared to others in our society. And my first question would be you note that osha has failed to issue a new enforceable requirement to protect the health of our workers and ive joined 30 of my colleagues in introducing legislation led by senator Tammy Baldwin of wisconsin who required the Labor Department to do just that. Why is this so important . How would this be helpful to your workers . Well, it would be helpful in the following fashion. If presently right now osha has indicated they are recommending that they follow cdc guidelines and cdc guidelines arent necessarily enforceable because theyre guidelines, early on in this crisis the cdc initially told people not to wear masks. We now know that might have been a mistake, that if we all wore masks early on we might have slowed the process and might not have had to shut down the country as rapidly and as drastically as we did. So if, in fact, there were specific guidelines that were enforceable that we could ultimately uniformly enforce all across the way, i think that it would go a long way to resolve our problem. We heard about a packing house that had not done some of the things they had done early and there were large outbreaks. Theres a specific reason because of the science inside the packing house. Its a high volume airconditioned unit that is humid and the virus stays airborne longer. Now, again, like the professor said, you cant necessarily tell whether or not the person contracted the virus in that location. Its just a higher probability that it could have happened if the virus entered the packing house. Okay, thank you. Ms. Dixon, along those lines you have noted i think it was last week that Administration Officials when they reportedly blocked the release of the detailed 17page guidance from the cdc on how businesses could safely reopen and part of this was that, i guess, to get to the question here, how would this type of federal guidance actually help us and the same question i just asked mr. Perrone about the osha standards . How would that help us as we look to reopen businesses safely. There is no enforceable recourse if their employer is not following the guidelines because theyre not enforceable. And if they are injured because of it, they have the Workers Compensation system or can file an osha complaint, but theyre pretty much locked out other than that. So that will make it risky when theyre making the choice between wages and their health to choose to come back to the work place. Thank you. Professor vladeck, i was listening to the last discussion you were having with senator hawley, and that was an interesting point about the Workers Compensation comparison. If federal compliance will be a safe harbor then that shifts a responsibility for setting these Safety Standards to the administration. Thats what i was getting at with these two other panelists which many have pointed out are not there right now. So far osha hasnt issued the requirement and last week the white house blocked the guidelines. What should we do if we dont have those . Then liability cases are all the more important. We only regulate the economy in two ways, statutes and regulations that are enforceable or by enforcing liability rules. If, in fact, the federal government remains off the Playing Field in setting these kinds of standards the courts are going to do it. You cant have no kind of restraint. Bad actors will do bad things and there will be no recourse. Which is why we have the court system. Yes. Thank you very much. Thank you, senator klobuchar. Senator cruz. Thank you, mr. Chairman, thank you for chairing this hearing and thank you to the witnesses for joining us. Thank you for your testimony. Mr. Smartt, as a fellow texan, welcome. Were glad to have you here. Can you describe for this committee the risk the threat of liability, the threat of lawsuits that your Convenience Stores face and how thats impacting your Decision Making Going Forward in this crisis . Thank you, senator, sure. The changes daily given from the cdc, as we look back to the beginning from federal to state to counties, we talk about Convenient Stores because thats the largest part of our business but if you take our Transportation Company who a driver very well and did drive from county to county where there were varying restrictions and guidelines where masks were required in one county and not the other, the everchanging procedures that were happening was difficult for us to keep up to communicate to our drivers. Ive certainly answered the question to senator graham about the need for clearer guidance and i go back to what mr. Perrone said to the cdc where we started out down this pathway where masks werent required and lo and behold two weeks into it they were required. Trying to find masks when the cdc just told the whole country we need masks. Couldnt get them. The liability we felt like we were under in those given situations would be an example. The challenge of running businesses and keeping jobs available, from the federal government, from state governments from different local governments, sometimes they are conflicting. Sometimes theyre changing as weve discussed the cdcs guidance on masks. One week do not wear masks, this is not a good idea. The next week wear masks. From the perspective of a business own er what do these multiple changing guidelines what effect does that have on running the business and is it the case that you only will be sued if you violate those guidelines or what is the real risk of lawsuits that youre assessing in the real world . The risk of the lawsuit is the cost of litigation especially if theres numerous ones. In terms of the ongoing cost of business to us and the complexity of it, its an everchanging event that weve been experiencing trying to keep up with the vast changes. There is cost in that. Again, not just to go back to the masks but any of the ppe material weve struggled to get. And id like to say every one of our stores is uniform. Whatever requirements, social distancing i have 47 stores and i have 43 configurations so to comply with potential standards isnt just like, okay, theres standards and we can all comply with them tomorrow. There could be a tremendous amount of cost to go through, not just cost, the time to get there. I think thats why when we look at this i said, hey, were looking for just a temporary relief from potential lawsuits. Mr. Perrone, i wanted to thank you for your testimony and thank you for your hard work. Fighting for your Union Members that youre fighting for. Would you agree congress has an obligation to work to keep people safe, to work to keep workers safe, to work to keep consumers safe, but Congress Also has an obligation to try to encourage as many jobs as possible as a place for workers to go and get the paycheck and that we should be trying to do both of those to the extent possible consistent with sound science . As a fellow texan as well excellent. Let me say the follow, senator. I think congress has an obligation to make sure society is safe. And that we do, in fact, produce a society that would be sustainable for somebodys life. If that means producing jobs, of course it is. We have to provide a safe place for people when they go out and work. I think mr. Smartt has done an excellent job in the things hes done in his stores. I have seen other companies, quite honestly, that havent done the same thing. But hes not the person im worried about. And i dont represent every food store in this country. So not every food store in this country gets an opportunity for me to Say Something to them about what they should or should responsibly do. So, yes, i do think its your responsibility, not yours specifically, but congress, to produce johns and to produce safe jobs for people. We are in agreement, senator. Excellent. Thank you very much. Texas is well represented today. Speaking of texas, senator coons. Thank you, mr. Chairman. Thank you, mr. Chairman. From one of americas largest states to one of its smallest but no less robust in our passion for finding a way to navigate this pandemic together. Americans watching this hearing at home might be a little confused. Theres a lot of legal juror began abo jargon about preemption. Who should bear the risks and the costs of employees working in unsafe conditions or of customers or visitors visiting unsafe conditions during this pandemic . Some employers have taken critical safety precautions to protect their employees and the public. Mr. Smartt, you have been recognized and complimented on both sides of the aisle, by labor representatives, republicans and democrats, for being an employer who has taken appropriate steps to try and set and follow standards and protect your workforce. But demonstrably there are others who have not. Some employers have encouraged sick employees to stay home. Demonstrably, others have not. And part of why president perrone is sitting next to you is the tragedy of 162 people dying because of covid19. In delaware theres 2,000 members at local 27 who work in Grocery Stores and meat packing plants, now some Home Health Aids and they are emblematic of those who are asking for safe work places in which they can work. There seems to be, mr. Chairman, a broad bipart son agreement that our laws shouldnt treat irresponsible employers and responsible employers the same. One of your very first sentences, dont protect the bad actors. And i would say the burdens of this pandemic shouldnt continue to be born by sick workers and their bereaved families. Lets clear the deck on this one. Mr. Smart, controversy excuse me, president perrone, if i could, do you believe the federal government has set clear, consistent, science based, enforceable standards for whats expected of employers to protect the safety of their workers during a pandemic . I do not believe so, no. Mr. President . Senator, i dont think that theyve done that for the employees on the customers. And in the absence of that the alternative thats being offered by some in congress is a blanket immunity law. Ms. Dixon, if i might, give my best to paul, if you would, how would this law there isnt a law in front of us today but is being urged by some how would that prevent an irresponsible employer who has endangered the lives of employees or customers who are being held accountable and how would that provide incentives for those who need encouragement or incentive to act in ways that are more expensive, more inconvenient but that might protect employers and customers . So we know that if workers dont if theres no rule then were depending on the honor system and some care about their employees and will do what is necessary based on the guidance thats been released thats not enforceable. We do know there are actors who will do as little as possible. Without there being enforceable guidance from osha its hard to see how workers actually have recourse. Ms. Hill talk about the importance of the hospitality sector in North Carolina. Its important in my state, tourism, and your efforts to come up with a voluntarily locally applied and driven standards mr. Smart said we shouldnt reward bad employers, just good employers. I think we have agreement we shouldnt be rewarding bad actors with a new blanket immunity law. Let me ask you delaware is one of the leading producers in chicken, and we have several thousand in plants and ive tried to balance providing resources and support for ppe and inspectors and for guidance with ensuring the safest possible working conditions for folks who are ufcw and Community Members both in the community and at work. What do you think is the most critical, urgent issue thats unmet to address worker safety in a pandemic where everyone agrees its the grocery clerks, the food processors, the Home Health Aids who are bearing the brunt of the risk here . I think that this is a little outside of my lane. I think its testing and Contact Tracing so we can determine whether these people going back into the plants and, forgive me, i know people said taking temperatures but by the time you take somebodys temperature, its too late. Theyre already back in the facility and passing the virus around. Unless they keep separate, wear masks, they do social distancing and as you indicated in a poultry plant when youre pushing 140 birds per minute, youre standing sidebyside, walking down hallways when they wilt these plants we didnt have a pandemic and the hallways are close. People have to stand in line to punch in and do other things where there is close proximity that they cant get away from each other. There are ways to fix it but they need to be uniform standards and there needs to be test to go make sure that you dont actually end up with somebody inside the plant that happens to be a carrier thats asymptomatic at the time. Thank you. I think all employers, looking for faster to a Higher Quality standard and to testing and to tracing and thats, frankly, what we ought to be dedicating ourselves to. We need to demand a clear and enforceable standard and then work as a nation to deliver the test and the Contact Tracing resources needed to enforce it. Ill add several of my colleagues have commented there is no wave of litigation here. Theres no demonstrated wave of litigation but there is a clear need for protection for customers, employees and our country. The Ranking Member asked that i introduce into the record a letter and testimony from Consumer Federation of america. Without objection. Thank you very much. I think senator hirono, are you there . Yes. Thank you, mr. Chairman, i would like to thank the panel and, of course thank you to mr. Perrone i have had the pleasure of working with your local president over the years. Your people truly are on the front lines. I thank all the panelists and would like to ask if any one of our panelists think that we do not need a sciencebased regulatory requirement that protects workers and consumers . Is there anybody who thinks we do not need this . Thank you. Let me ask professor vladeck a question. I know you touched upon this because under tort law you have to show negligence. As this virus is so easily transmittable it will not be easy to show you got that virus from that particular place. Without negligence, without being able to show negligence, you have no claim, isnt that right, professor . Thats right. You have to show causation. The plaintiff needs to make in a complaint and, frankly, no lawyer is going to take these kinds of cases on because the causation problem in most cases is unsolvable. I would agree with you, not only do you have to show causation there are no intervening acts that led to your injury. Thats another. If youve been outside in new york there are a lot of people who got the virus even when they were housebound. The question of causation is a devilishly difficult question here and i dont think youll see a lot of those kinds of cases. I agree with you. Im one of the three members on the committee its a great day. I have a question for ms. Dixon. You did touch upon in your testimony also but the kind of harm that would happen if we provide this blanket immunity, would create a race to the bottom for businesses. Some are bad actors and may do the minimum. Wouldnt that have a negative effect on workers who represent minority groups . Yes, thats correct. Do you want to expound on that just a little bit more . Yes. We know that historically certain workers wellbeing has been undervalued and these workers who are doing the Meat Processing have been undervalued and are heavily black workers and immigrant workers. Also, by the way, most states i think only one state that does not have a Workers Compensation law and that law says if you are injured in your employment, you give up the right to sue your employer even if your employer is negligent for the health care that will be provided to you. Basically what were talking about today is who should bear the risk. The workers or customers who walk in the door. This is, again, for professor vladeck. Who do you think is in the best position to bear the risk of liability created by covid19 claims . Have Insurance Coverage, workers and consumers . Well, i have my own view, of course, is that businesses and the employers bear the risk, bear the cost of whatever injury takes place. Thats the way our system has worked for 200 years. In the case of the businesses, cant they lower their liability risk by following science based it has to be science based, the regulatory requirements, that really protect workers and consumers. Cant they lower their exposure if they follow the requirements . Thats the ticket to avoid liability which is every state recognizes a Regulatory Compliance and the defense is strongest when, like mr. Smart, is relying on an evidence based standard that is enforceable by the government. So i think two things made very clear during this hearing. For one thing there will not be a tsunami or tidal wave of lawsuits based on a tort claim for exposure to this virus and the causality is a very hard bar. There is agreement we should have science based regulatory requirements and i hope that is the direction this committee is going. Thank you. Thank you, senator hirono. I am the only senator in the room, therefore, i have the gavel. The good news is that i will be limited in terms of time by the normal rules and if any of my colleagues come back on the other side of the aisle ill defer to them or after i go senator booker. I really want to thank all of you for being here. This panel has been excellent. Charleston is one of my favorite cities in the whole world. Thank you for that. Ive been there with my family and we have really enjoyed and weve learned from its history. I want to thank you for being here and since my colleague from South Carolina isnt here i cant say that im sart of trying to get on his good side. I want to thank you for your very steadfast representation of the men and women who do such great work for us and many of them are essential workers. Thank you for being here. I want to put in the record a letter, two letters, from signed by Mary Kay Henry and another is from 30 unions, their leaders are standing up, also, for sensible, rational, reasonable protections for our working men and women around the country. I think the good news for all of us is that nobody on this panel wants the kind of blanket sweeping shield that would, in effect, bar the courthouse door to people, victims, and others who have reasonable complaints. Folks who are harmed in the work place, who get sick there, who have legitimate complaints should have access to the legal process. Should have redress and recourse. And closing the courthouse door to victims of harms that can be prevented with reasonable and sensible precautions, i think, strikes all americans as a basic part of our constitutional fabric and, in fact, the overreach and the overextended blanket immunity i think would violate constitutional guarantees. I want to thank you, mr. Smartt, for being here and speaking on behalf of the Business Owner who tried to do the right thing, and adopt those kind of sensible and rational precautions. I want to say to you and to all of those Business People you have nothing to fear if you take those kinds of sensible, ration precautions and im very sympathetic to your desire for clarity which federal agencies like osha could give you. In fact, they have the obligation to give that kind of certainty and clarity to you and to workers who may be victims of bad actors. And they could help deter and discourage those bad acts in the work place. The failure to adopt reasonable and sensible measures that protect against the spread of coronavirus in the work place. Let me ask you, you say that you are and im quoting from testimony, in favor of tailoring Liability Protections so they still allow true bad actors to be sued. If your criteria for granting any sort of immunity is whether someone is a bad actor, who decides who is the bad actor . Its a great question. Im not an attorney but i would say thats what were here today to discuss. Again, i go back to a little bit earlier where i said, and of course my concern is if something has happened in the last six weeks, that lawsuit may not show itself for another four weeks. And so im thinking in the immediate and the very short term. Im not thinking in the long term. I understand. You want to limit in terms of time. Correct. And i certainly strongly agree if there is any move in this direction it ought to be strictly limited in terms of time but ill answer the question in the only way i see it answerable which is that the decision about who is a bad actor has to be made by a judge or a jury. In other words, youre saying only bad actors should be brought to court, but the only way to decide who is a bad actor is on the facts of what he or she does and that judgment has to be made in a courtroom. And if you bar the courthouse door to a victim theres no way to hold those bad actors accountable. I think your plea for clarity and certainty, nothing in life can be absolutely certain, is essentially to the Government Agencies that can provide stricter and more certain standards but also to that idea of what is a reasonable standard of care and youre answering that in a sense for us by your actions. You are showing us and the world what is a reasonable standard of care. Youre taking precautions, providing for protective gear. Setting standards for your workers. And i think that is by example your leadership in providing what is a standard of care. And to say were only going to hold the bad actors accountable is in effect to say courts and judges should, in fact, continue to do their job. Does that sound sensible to you . Yes, sir, it does. And i think i would use the word, too, unjust. I think its sensible what youre talking about. My fear theres an unjust lawsuit that comes up. I understand. And the costs surrounding that unjust lawsuit. And nobody wants frivolous lawsuits. Im a lawyer. I used to be an attorney general of my state. I used to be a federal prosecutor. But i was also a lawyer in private practice and they are wasteful for the lawyers who bring them because theyre usually lost and thats costly for the lawyers because they cant really charge their client if they lose even for the expenses. So let me just move on to another point that you make. Youre a distributor. Youre a wholesaler. You have a wholesale business and you have retail business. If somebody delivering goods to you failed to take any precautions with their workers doing a delivery, so they were infected, and they then went into your businesses and since they werent Wearing Masks and they were infected because of the lack of proper precaution and they, in effect, caused sickness to your employees and they caused your business to have to shut down, wouldnt you want some recourse . Well, i think thats a very good question. Its a very tricky question. I would almost turn it to say if the store had an infected playee and i had vendors delivering to my store. I cant hear you. Where i had a store where somebody who tested positive and i had vendors delivering to my store so it could have been the opposite situation there. To, i guess, my point of the testimony, i thought i did Everything Possible but i still had somebody who tested positive, but they could say the same thing about me. Well, you didnt have a mask. Well, the cdc didnt require me to have a mask up until a week ago. I guess im not looking to blame a potential vendor or supplier because i dont think theres been clarity and thats why given the very Current Situation i would ask for some protection against an unjust suit given the lack of clarity that we face. Moving forward is different than current to me. Well, im not your lawyer, but if i were, i would say you lost millions of dollars of business because you have this very, very Successful Service to a lot of people who will be deprived of the fresh produce, the gas line that you sell, all of these really important products because some wholesaler said, you know, i dont really believe in this coronavirus thing, i dont see the need for testing my employees, i dont see a need for Wearing Masks, for washing hands, and i dont care where they go. And i would say as your lawyer, you know, you deserve a remedy. You deserve to seek some recourse, some damages from this guy who has been really irresponsible when youre doing everything right. Does that sound like it makes sense to you . Yes. If a lawyer advised you of that. Yes, it does. I mean, im not i realize its what we call in the law hypothetical right. And i know the likelihood is not high, but the point im making to you is that people like yourselves who do whats reasonable and sensible and im taking it on your testimony that its accurate and true, also deserves some protection. The good guys deserve some protection against the bad actors and the good guys may not be only the workers who are sickened and their families who may be infected but theyre the Business People who are adversely affected and harmed when others fail to do the right thing. And i do understand your point about the difficulty of setting what a bad actor is. I would assume in that situation if that person, that vendor was truly negligent, they would be a bad actor and not immune. They would not have they would not. They would not have this blanket shield of immunity if they were negligent. If they were truly a bad actor. How you set that how you determine it it would be correct. Up to a court probably, right . I would think so. Going to wrap it up here. Im sorry. I didnt know you were back. Senator graham, i said some nice things about charleston. Its on the record. We appreciate that. We want to you come visit, too. I have and i would go back in an instant. Well, we would love it if you would. Bring your family. I think we have a bit of a lag here. Were waiting on senator booker and harris, is that right . So, if i may, mr. Tyner, are you still there . Yes, sir, i am, senator. While were waiting from a College University point of view how important is it that we can only give you some standards to go to work by . Based on good science, what is the best way to protect your students and your faculty and all your staff . Thats important and ive gotten that from this hearing. We need to do a better job in that regard. But in terms of past behavior because there is a hodgepodge out there, this period of time where there is uncertainty in terms of regulation, how important is it that we solve that problem by the fall . Thank you so much, mr. Chairman, for the question. Its a great question and one of the challenges in Higher Education we have not reopened completely and we need to make it easier to do so, and so we are struggling with osha and really not by the tort system at all but were going to have a situation where students return to campus and having to figure out things like is the standard of care require that we test those students . Are we allowed to . How densely should we allow housing . Whats the density allowed there . And, if i may, if the state did that, that would probably be good enough for you, but thats right. Somebody needs to do it is what youre saying. Yes. Theres a couple problems with the state doing it. One is the timing. Were making many, many decisions right now about how and whether and to what extent to reopen and fully engage in activities and we need some protection that if we follow state and local health rules and the rules that apply to us that were not going to be liable because we didnt test at the same level as san diego. What is the standard. One of the ultimate question for football fans is without Something Like this will it be more difficult to play football . Yes, sir. Think about right now we should have student athletes preparing to make sure theyre adequately trained and in shape if they want to play football in the fall but yet were asking student athletes to come in close contact with each other, athletic trainers, coaches, and we dont noknow the standard of care. Its undefined. This isnt like other tort situations were facing issues we faced for many years and the standard of care is well developed, this is a pandemic weve not seen before. So what is the standard of care for returning to a stadium that seats tens of thousands of people, for how closely Football Players can be to unone another . They cant really practice. They cant really play if they cant come this contact. Can you see any Major University beginning to practice without some guidance youve described . I think there will be a range of approaches. Some will and some will not. Thats the clip problem i talked about. Youll have people respond in different ways. What will tcu do . I dont think we have enough information to make those decisions yet. If you dont start getting ready for practice it will be hard to play in the fall, correct . Hard to do so safely. Okay, all right. Ill tell you what, im going to give you about two or three more minutes and then well shut it down. Weve been here since 5 00 i mean, since 2 30. I just want to say to the panel its been very enlightening. Mr. Perrone, thank you. Did i get it right finally . Okay, good. Tell your members that we appreciate what theyve done. Mr. Smartt, i think youve become the Gold Standard for what were looking for. Helen, thank you very much for explaining the fear that people have, and thank you so much. Professor, you did yourself proud. We all should get three hours of credit for basic tort law. I appreciate that very much. So what does the committee do . Were going to try to absorb all of this and come up with a way forward for the country. It seems to me one primary goal out of this hearing is to get the standards in place for business, for universities, for schools. Whether they come from the cdc, osha. They need to be out there so that people can understand whats expected of them. If they do whats expected then they dont have to worry about getting sued. And the big hole in the puzzle is the standards. We have work place safety rules for how you do business in a meat packing plant but no rules how to protect yourself against coronavirus in a uniformed way. The same for a convenience store, the same for a tourist shop. Okay, well, senator harris senator harris, are you out there . Im here. Can you hear me . Yes, maam. Yay i thought i was good with technology until the virus hit. The floor is yours. Thank you very much, i appreciate it, and thank you for this hearing. So essentially this hearing is about risk and what congress should do during the pandemic to address risk, the risk that many are facing. And i think, though, we need to be honest about who bears the brunt of the risk at this moment. On the one hand we have, of course, business and corporate interests and on the other hand in many ways when we are talking about the subject of the hearing, on the other hand its workers. Like masks and ppe to protect their workers, businesses should put social distancing procedures in place. Even though that may slow down production. But the risk there is perhaps there will be a slowing down of production or a loss of some profit. When were talking about workers, the risk, their health, their safety. The risk is even potentially death. While some have argued that businesses need immunity to protect them from lawsuits, that their workers might bring for illness and injuries suffered on the job, i believe what we need to do is recognize that the workers also are deserving of protection, that in many states, in fact in most states, if there is any threats of workers asking for compensation it is Workers Compensation which states produce. I have a question then for ms. Dixon. Is that correct . Yes, thats correct. And is it correct businesses that carry Workers Compensation cannot be sued by their workers . Thats also correct. And forced arbitration agreements prohibit from seeking justice in courtrooms . A disproportionate share of this pan defensemen i can and every day workers who are workers of color and some would even argue that they are doing the jobs that others may decide are sacrificial jobs to make sure that people are safe and protected during this pandemic. In fact, last week the New York Times published a story about three hospital workers in new york who handed out masks and gloves to doctors and nurses. Their names were wayne edwards, derrick and priscilla harrow. We lost all three to covid19. Aside from the fact it was the cause of their death they were all africanamerican, nonmedical workers, they were frontline workers, some of the lowest paid workers in the hospital. I ask you, people of color obviously make up a disproportionate number. Can you tell us what your experience has been . That is also correct and i think we have to look at the intent and the impact. We can argue about intent but the impact of not having enforceable osha standards is that black and Brown Workers are dying. We should ask ourselves why havent we done something about this because we know what the impact is. And miss dixon, in your experience among the frontline workers what percentage would you say have paid sick leave and or Health Insurance that covers testing and treatment . A very small percentage. Mr. Perrone, i think you are there. Marc perrone . Hes here. I have a question. Hes here. You represent meat packing workers. How many have tested positive for covid19 or been exposed on the job, do you know . About 10,000. And how many have died . 63. And can you tell me what are the risks that your members are facing at meat packing plants and those forced to go back to work . What kind of risks are they facing while were on the subject of risks . My best description would be its almost like a stationary cruise ship. People are very close together. They eat lunch together. They walk down halls together. They stand sidebyside. There is very its very difficult to have social distancing in the present conditions. Now what has been done is that there has been an effort to create layered ppe, layered personal protection equipment, to make sure that they are safer, but its still a challenge because of all the high volume air conditioning in those plants. It produces a lot of air volume which keeps the virus airborne longer. Thank you, sir. I believe my time has expired. Thank you, mr. Chairman. Thank you very much, senator harris. Thank you all. We will adjourn the hearing and allow written questions for an appropriate period of time to be submitted. And thank you for all youve done for the country and your great service. Thank you. Tonight American History tv beginning at 8 00 p. M. Eastern well look at the High School Advanced Placement u. S. History exam. The test takes place on friday, may 15th, with students participating across the country online. American history tv and cspans washington journal hosted a program for High Schoolers preparing for the test. Watch American History tv tonight and over the weekend on cspan3. The president s from public affairs, available now in paper back and ebook. Presents biographies of every president organized by their ranking, by noted historians, from best to worst. And features perspectives into the lives of our nations chief executives and leadership styles. Visit our website,