Fast-tracked bill would shelter businesses from lawsuits over COVID-19

State lawmakers moved on Tuesday to advance a bill that would provide businesses with nearly blanket protection against COVID-19-related lawsuits and prevent employers from being able to require that their employees obtain vaccination against the virus.

Construction interests — and business groups broadly — have long-sought a shield from lawsuits that might arise should employees contract the coronavirus. The state’s liability-exemption proposal comes after federal lawmakers failed to reach a deal on similar legislation last month.

The Assembly’s Committee on Health held a public hearing on the state bill on Tuesday and was planning to reconvene to vote on it later in the day. Support for the proposal is coming from representatives of various influential groups, including the Metropolitan Milwaukee Association of Commerce and Wisconsin Manufacturers and Commerce.

Sen. Chris Kapenga, R-Delafield, who circulated a similar proposal last fall, said shielding businesses, schools and other entities from lawsuits related to COVID-19 would be a “common sense” move.

“We’ve got a very large list of organizations across the political spectrum that (support the proposal),” Kapenga said.

The proposal introduced this week, however, differs from Kapenga’s initial proposal. His original bill would have extended liability protections only to companies that followed government orders intended to prevent the spread of the coronavirus. The proposal now under consideration in the Legislature, in contrast, would give employers protection even if they defied local, state or national orders to close their businesses or limit capacity.

Kapenga said the change was intended to protect employers from local rules that are stricter than those imposed at the state or federal level. He declined to provide an example of such a rule.

“We wanted to make sure that we didn’t have a municipality come in and put something in place that made it extremely difficult for a school, businesses or nonprofit to comply with, because that could be used by a trial attorney,” he said.

Assembly Speaker Robin Vos acknowledged that few, if any, legal challenges have arisen in Wisconsin over a businesses’ COVID-19 response.

He said the proposed protections wouldn’t stop all COVID-related litigation. Employers could still be held liable if they were found to have engaged in “reckless,” “wanton” or “intentional misconduct.”

“If people make reasonable accommodations, they would be able to be free of lawsuit,” Vos said. “But the idea that an employer creates an unsafe workspace, that would have to be litigated. There’s not a clear standard.”

Vos said the liability language draws heavily on rules enacted in North Carolina. At least 16 other states, including Michigan, Iowa and Ohio, have also adopted some form of liability protection.

There were few objections to the proposed protections during the hearing on Tuesday. Heath Straka, legislative liaison for the Wisconsin Association for Justice, which represents the interests of trial lawyers, complained that the proposal would protect “bad actors” who willingly violate COVID-19 rules.

“We believe big government should not pick winners and losers when it comes to legal disputes,” Straka said. “Picking winners and losers through immunity provisions simply does not comport with conservative principles.”

A number of construction interests, including the Associated General Contractors of America and the Associated Builders and Contractors of Wisconsin, have called on lawmakers at either the federal or state level to adopt rules to protect employers from lawsuits over COVID-19 exposure.

“ABC of Wisconsin has been working hard advocating for this safe harbor legislation to protect contractors who are doing their level best to keep their employees and the public safe,” said John Schulze, director of legal and government affairs for the ABC of Wisconsin. “This is not about defending employers who recklessly or intentionally caused harm.  This is about contractors facing the very real threat of frivolous lawsuits that seriously undermine efforts to restart and rebuild the economy.” Follow @natebeck9