The HEALS Act is anything but healing
As the pandemic rages on, movements for civil and human rights persist and death counts from the fallout tick ever upward, corporations and universities are waiting to find out if Congress might throw them a sought-after pass amid the crisis. The gift in question? Corporate immunity in the proposed Health, Economic Assistance, Liability Protection, and Schools (HEALS) Act – big business’s dream for a sweeping shield from COVID-19 lawsuits and accountability at a time when corporations’ “social conscience” is most visible and critiqued.
With its legislative language masquerading as worthy protection from the thinly veiled illusion of bloodthirsty mosquito “trial lawyers,” the HEALS Act brazenly advertises liability protection right in the name. Here, companies’ economic fears are exploited and quelled with the use of tropes that appear to safeguard productive freedom in the time of coronavirus. In a pay-no-attention-to-the-man-behind-the-curtain fashion, the legislation paints a baseless caricature of plaintiff lawyers ready to pounce, while feeding huge corporations unprecedented refuge for negligence and harm under the table.
The HEALS Act claims that Congress must safeguard taxpayer money loaned to businesses under the CARES Act from ending up in virus exposure lawsuits. The reality is that “liability protection” allows this aforementioned taxpayer money to be given to businesses, which can then function to flout basic guidelines and safety measures. These companies are harming the very people paying to keep them afloat, all while capitalizing on their corporate immunity to save a buck by cutting corners. With this logic, taxpayers essentially could be funding their own hazardous conditions, the creators of which get to keep the money afterward.
The Act would require lawsuits over coronavirus exposure to convincingly prove that corporations or other entities were not making reasonable efforts to comply with applicable standards and guidance at the time, that they also were engaged in gross negligence or willful misconduct to cause the exposure – a higher bar to prove – and that the specific exposure was what made them sick. Should the Act pass, all this will be quite difficult to prove.
Further yet, businesses would benefit from the automatic presumption that they are making reasonable efforts as long as they put mitigation policies in writing. A lawsuit would then have to prove that this presumption is wrong by showing the business did not in fact comply with the policy at the specific time. Didn’t write or publish a policy? No problem, the Act also says this won’t amount to an assumption that a business didn’t make reasonable efforts. Additionally, anyone bringing a lawsuit will also be forced to file an affidavit from an outside medical expert to explain the basis for a physician’s opinion, increasing the cost of an already inhibitory obstacle course.
Universities like Hofstra are represented by powerful industry groups lobbying Congress for this legal safe haven, contradicting the notion that student and worker safety is the “top priority.” Because corporate immunity would give universities and other corporations fewer incentives to adhere to even basic safety precautions, it will be nearly impossible for these organizations to lose lawsuits to individuals harmed by their negligence – something that should be accessible in our justice system. This begs the question: Why do these entities think that they should be above the law and beyond reproach?
In response, students at various universities nationwide, including Hofstra, have started petitions asking schools to openly oppose corporate immunity being pushed in their names and to oppose the use of liability waivers to reopen campuses, which endangers not only students, but the Black, brown and immigrant workers as well. These communities, which are often overrepresented and undercompensated in front-line, essential positions on university campuses, continue to be disproportionately harmed in this pandemic.
The Act’s liability protection gives businesses, universities and health care facilities a free pass to ignore and flout basic safety guidelines without fully committing to or being held accountable for the health of those they employ and serve. It raises an already high bar for students, workers, teachers and patients facing impossible choices: to seek justice in a system hellbent on extorting them.
Against the backdrop of movements calling for civil and human rights to overcome systemic imbalances of power, support for corporate immunity is antithetical to these cries for justice, equality and accountability.
Vanessa Giunta is a JD Candidate for the class of 2022, you can find her on LinkedIn at www.linkedin.com/in/vanessagiunta/.
