Iowa law now shields most businesses from COVID-19 lawsuits

By Ian Richardson and Tyler Jett Iowa, National Source

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  • June 30, 2020

SOURCE: De Moines Register

Republicans in the Iowa House and Senate have passed legislation to largely shield businesses and health care providers from many coronavirus-related lawsuits, despite criticism from Democrats and advocates for workers and the elderly.

The legislation limits who can file civil lawsuits against businesses for COVID-19 illnesses. It also raises the bar for what makes a business liable for coronavirus exposure.

After the House passed the bill June 5, Senate Republicans pushed the legislation through late Wednesday on a 31-18 vote. Sen. Jim Carlin of Sioux City was the sole Republican to join Democrats in voting against it.

“This is a timely, important and consequential bill,” said Sen. Zach Whiting, R-Spirit Lake, the bill’s floor manager. “If you’re an employer or a premises operator or health care professional, and you did your best to keep your people and your property safe based on the public health guidance and best practices at the time, you’re OK, and you should not have the threat of litigation hanging over your head.”
The Iowa Capitol in Des Moines

But Democrats, who are the minority in both chambers, said the bill goes too far to shield meatpacking plants and nursing homes that didn’t provide sufficient safeguards against the virus.

“We are going to allow companies to pretty much get away with just about anything,” Sen. Bill Dotzler, D-Waterloo, said Wednesday night.

The bill will go now to Gov. Kim Reynolds, who rejected criticisms that the legislation protects irresponsible business owners.

“They have gone above and beyond to do everything that they can, not only to protect their employees but to make sure that they’re protecting their clients that come in,” she said during her Wednesday news conference. “So it’s a balance.”
Bar raised for filing lawsuits

The bill covers businesses that include meatpacking plants, hospitals and nursing homes. It limits suits by employees, customers and family members to cases involving coronavirus-related hospitalizations or deaths. They can also sue if they can prove a business owner intended to make people sick.

“Who knows where you get it (the virus)?” said Matt Everson, Iowa state director for the National Federation of Independent Business, which registered in favor of the bill. “Most people are asymptomatic. There’s no way to know who’s got it unless you test everyone, and our members can’t afford to test everyone all the time.”

Groups representing nursing home residents and meatpacking employees countered that the bill removes remedies for abusive businesses.

“Iowa should not strip away the rights and protections of our most vulnerable citizens at a time when they need our help the most,” AARP State Director Brad Anderson said in an emailed statement.

As of Wednesday night, nearly half of the 639 Iowa deaths from COVID-19 involved people who lived in long-term care centers, according to the Iowa Department of Health. The state has reported outbreaks — meaning at least three residents in a facility tested positive for the virus — at 37 of those centers.

The virus also has hit meatpacking employees hard. According to the Midwest Center for Investigative Reporting, about 3,300 workers at Iowa plants have tested positive for the coronavirus — more than in any other state.

“It is shocking to see state leaders push such a dangerous bill that will allow giant companies to abandon their responsibility to keep these Iowa workers safe,” seven local United Food & Commercial Workers presidents said in a joint statement.

Sen. Dan Zumbach, R-Ryan, said meatpacking workers can’t prove they caught the virus at the plants where they work. With eight-hour shifts, he said, they spend twice as much time away from the plants as they do at work.

“This is about ensuring that those folks have a place to work long-term, ensuring the people that bring the animals into those plants have a place to bring them to,” he said.
Seniors advocates: Bill protects inadequate care

In an April 9 order from the Iowa Department of Public Health, the state already had given health care providers legal immunity if they acted “in good faith.”

But West Des Moines medical malpractice attorney Russell Hixson said the new bill inappropriately extends protections to nursing homes. His concern involves the same provision of the new law that Everson cited, involving intent.

While Everson said a mom-and-pop restaurant that acts responsibly within state guidelines needs protection from lawsuits to feel safe operating amid the virus’ spread, Hixson said the protection is a gift for large nursing home companies. Even if they don’t follow proper health guidelines, Hixson said, the bill shields them from lawsuits because families won’t be able to prove that the nursing home staff actively tried to get residents sick.

“That gives them a blanket immunity to continue (providing poor care) and providing no protection to the elder community,” he said. “Most of those elders, they have to be there. It’s not like they have an option to go away.”

John Hale, who owns an Ankeny consulting firm focused on the elderly and the disabled, also opposes the bill. He said the bill treats well-run nursing homes the same as ones with histories of violations.

“There have been people in facilities who had been receiving inadequate care for years and years and years,” he said. “And now it’s worse than it’s ever been because of the pandemic.”

Iowa Healthcare Association President and CEO Brent Willett said families and residents will still be able to sue if a nursing home acted recklessly or intentionally caused harm.

“These protections are important because the potentially exorbitant legal fees and costs to defend against baseless lawsuits deplete critical resources needed to care for our state’s elderly during this challenging time,” he said in a statement.
Impact on meatpacking

The bill does not block employees in meatpacking plants from filing workers’ compensation claims. On Wednesday, the family of a deceased Tyson Foods worker in Storm Lake did just that.

But some personal injury attorneys told the Des Moines Register that the bill still protects large meatpacking companies from other lawsuits.

The companies often hire outside staff to clean their plants. Those cleaners could typically sue the company for an injury sustained on site, Hixson said. But the bill will require the cleaner to prove that the meatpacking company intentionally got them sick or should have known conditions in the plant would make them sick.

Andrew Bribriesco, an attorney who represents several Tyson Foods employees at the company’s plant in Columbus Junction, said crafting large class-action lawsuits against these companies would be difficult. Employees would need to prove they got sick at work, a legal standard that is more challenging than it sounds.

In Illinois, by comparison, the Legislature passed a bill with the opposite approach. The burden of proof falls on businesses, Bribriesco said.

He said he believes hundreds of Columbus Junction residents would be able to join together in a lawsuit against Tyson if Iowa operated with the same standard as Illinois. Columbus Junction, where Tyson Foods is by far the largest employer, in April experienced one of the highest rates of per capita infection of coronavirus in the country.
A Tyson Foods processing plant is seen, Tuesday, April 14, 2020, in Columbus Junction, Iowa.

Bribriesco said the bill also has a symbolic effect: Workers will believe they don’t have legal remedies, and they won’t bother to sue.

“It’s sort of a deterrent,” he said.

Hugh Baran, a staff attorney at the National Employment Law Project, said the bill also blocks employees from filing lawsuits seeking injunctions, not money. This takes away a remedy for workers who want to push the businesses to change their behavior.

Spokespeople for Tyson and JBS USA, which operates a plant in Marshalltown where at least one worker has died, declined to comment on the bill Wednesday. Representatives from National Beef, Smithfield and Triumph Seaboard did not return messages seeking comment.

Democrats in the Iowa Senate brought up the conditions in meatpacking plants several times Wednesday night. They offered a handful of amendments — all of them rejected by the Republican majority — including some that would have extended whistleblower protections to employees and required businesses, in order to receive protection from lawsuits, to publicly report infections and provide paid sick leave.

“What we see here before us is a bill that grants blanket immunity with not even basic thresholds of health and safety to earn that immunity,” Senate Minority Leader Janet Petersen, D-Des Moines, said Wednesday night.
A national movement

Baran said business organizations and conservative groups have offered guidance to states to craft such bills.

According to Claims Journal, an insurance trade publication, governors in four states have already signed bills granting immunity to businesses in COVID-19 lawsuits. Lawmakers in Louisiana, Kansas and Arizona also have passed immunity lawsuits in at least one chamber.

In the health care field, the American Tort Association found that more than half of states have granted some form of immunity to providers through either legislation or executive order.

In her “National Return to Work Plan,” issued on April 13, U.S. Chamber of Commerce President Suzanne Clark suggested governments raise the burden of proof for suing businesses over coronavirus diagnoses. She also suggested shielding companies from lawsuits if they follow regulators’ guidelines.

Without better protection, Clark wrote, some businesses would not reopen while the pandemic continues. Owners would worry about a stack of lawsuits sending them into bankruptcy.

“This is perhaps the largest area of concern for the overall business community,” she wrote.

The American Legislative Exchange Council, a conservative group, announced in early May that it was crafting sample bills that state lawmakers could use to protect businesses.

“There needs to be a measured approach, and there needs to be protection from certain liability,” Ronnie Lampard, an ALEC staff member who heads the state’s civil justice task force, told Bloomberg. “We want to say if the organizations and employers are complying with certain rules and regulations, those companies should be immune from certain liability.”