Should the US give employers lawsuit immunity?

One of the issues (although far from the most important one!) holding up agreement on a new coronavirus relief package in Congress is immunity. No, not immunity to the virus itself – I would hope there’s no dispute that this would be the best thing that could happen, if it could be achieved. It’s immunity from lawsuits over Covid-19. The Republicans are advocating immunity to employers as long as they’re following CDC guidelines, but of course the burden will be on the plaintiff to show the employer in fact didn’t follow those guidelines.

And that’s going to be quite hard, since the worker will need to have documents – photos, maybe internal emails, records of complaints that were filed but ignored, etc. It will be very hard to obtain these things, especially since the employer can simply fire anybody who insists on complaining to them about working conditions.

Aha, but isn’t there a government agency that will protect the workers? Well, there used to be one, called OSHA. This agency was instituted by Richard Nixon (who also instituted the EPA and the Earned Income Tax Credit. He would be considered a wild-eyed leftist in today’s GOP), and is tasked with making sure that employers follow safe workplace practices and that complaints against employers who don’t do that are investigated and resolved.

So what constitute safe workplace practices to protect workers against the novel coronavirus? They’re quite clearly spelled out on OSHA’s web site. But there are two problems. First, OSHA has not made these mandatory, as they have standards designed to prevent injuries caused by industrial accidents. OSHA has decided that their mandate to protect workers doesn’t require them to enforce mandatory standards to protect workers from the coronavirus, the greatest threat to worker safety since OSHA was founded.

That’s not a good thing. But OSHA is also supposed to investigate complaints against employers for unsafe workplaces. Even if they’re not going to fine an employer they have determined to be operating an unsafe workplace, they can certainly provide a report to the employer on what they’re doing wrong, and require that they fix the problems.

Of course, even after being the subject of an order, an employer could simply ignore it and go about their business. But in that case, any worker who contacted Covid-19 in the workplace could sue the employer, who would then be required to produce the report as evidence. With this powerful tool on their side, a worker’s chances of winning a lawsuit would be much better. Even more importantly, employers would presumably recognize this danger and proactively do what they’re not otherwise obligated to do – make their workplace safe so that they don’t get in trouble with OSHA in the first place.

Sounds good, right? It would be good, if it weren’t for one inconvenient fact: It seems OSHA isn’t even conducting an onsite inspection for the vast majority of complaints before closing them – other than sending a letter to the employer asking if the complaint is valid; this includes many complaints against meat packing plants – which are the gold standard for an unsafe workplace in Covid times. In fact, as of mid-June, only one employer had been cited for workplace violations related to Covid – a nursing home in Georgia (I can’t find any further records beyond that one).

This leads me to propose a good compromise on the issue of employer immunity to Covid lawsuits: OSHA would have to issue clear guidelines, make them enforceable and greatly step up inspections to make sure that employers get the message that there’s a new sheriff in town. If they do that, then the amount of damages that could be sued for might be capped at say $1 million (and so far I don’t know of any suits that have succeeded, which shows you how stacked the deck is against a worker who tries to sue now).

Until this happens, there should be no immunity at all for employers. And the same should apply to retailers. Even though OSHA doesn’t inspect them, people who shop are more likely to feel free to document problems they see than workers are. If there are clear guidelines for retailers and some law or regulation requiring that retailers follow them, they should also have limited liability.

The numbers

These numbers are updated every day, based on reported US Covid-19 deaths the day before (taken from the Worldometers.info site, where I’ve been getting my numbers all along). No other variables go into the projected numbers – they are all projections based on yesterday’s 7-day rate of increase in total Covid-19 deaths, which was 5%.

Note that the “accuracy” of the projected numbers diminishes greatly after 3-4 weeks. This is because, up until 3-4 weeks, deaths could in theory be predicted very accurately, if one knew the real number of cases. In other words, the people who are going to die in the next 3-4 weeks of Covid-19 are already sick with the disease, even though they may not know it yet. But this means that the trend in deaths should be some indicator of the level of infection 3-4 weeks previous.

However, once we get beyond 3-4 weeks, deaths become more and more dependent on policies and practices that are put in place – or removed, as is more the case nowadays - after today (as well as other factors like the widespread availability of an effective treatment, if not a real “cure”). Yet I still think there’s value in just trending out the current rate of increase in deaths, since it gives some indication of what will happen in the near term if there are no significant intervening changes.

Week ending	Deaths reported during week/month	Avg. deaths per day during week/month	Deaths as percentage of previous month’s
March 7	18	3
March 14	38	5
March 21	244	35
March 28	1,928	275
Month of March	4,058	131
April 4	6,225	889
April 11	12,126	1,732
April 18	18,434	2,633
April 25	15,251	2,179
Month of April	59,812	1,994	1,474%
May 2	13,183	1,883
May 9	12,592	1,799
May 16	10,073	1,439
May 23	8,570	1,224
May 30	6,874	982
Month of May	42,327	1,365	71%
June 6	6,544	935
June 13	5,427	775
June 20	4,457	637
June 27	6,167	881
Month of June	23,925	798	57%
July 4	4,166	595
July 11	5,087	727
July 18	5,476	782
July 25	6,971	996
Month of July	26,649	860	111%
August 1	8,069	1,153
August 8	7,421	1,060
August 15	7,770	1,110
August 22	8,135	1,162
August 29	8,517	1,217
Month of August	34,250	1,105	129%
Total March – August	191,021

Red = projected numbers

I. Total deaths

Total US deaths as of yesterday: 164,139

Deaths reported yesterday: 1,303

Yesterday’s 7-day rate of increase in total deaths: 5% (This number is used to project deaths in the table above; it was 5% two days ago. There is a 7-day cycle in the reported deaths numbers, caused by lack of reporting over the weekends from closed state offices. So this is the only reliable indicator of a trend in deaths, not the three-day percent increase I used to focus on, and certainly not the one-day percent increase, which mainly reflects where we are in the 7-day cycle).

II. Total reported cases

Total US reported cases: 5,097,187

Increase in reported cases since previous day: 63,464

Percent increase in reported cases since 7 days previous: 9%  

III. Deaths as a percentage of closed cases so far in the US:

Total Recoveries in US as of yesterday: 2,618,025

Total Deaths as of yesterday: 164,139

Deaths so far as percentage of closed cases (=deaths + recoveries): 6%

For a discussion of what this number means – and why it’s so important – see this post. Short answer: If this percentage declines, that’s good. It’s been steadily declining since a high of 41% at the end of March. But a good number would be 2%, like South Korea’s. An OK number would be 4%, like China’s.

I would love to hear any comments or questions you have on this post. Drop me an email at tom@tomalrich.com