[Congressional Record Volume 166, Number 207 (Tuesday, December 8, 2020)]
[Senate]
[Pages S7268-S7270]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              CORONAVIRUS

  Mr. CORNYN. Madam President, on another matter, this week, I hope we 
are able to make more progress on the coronavirus relief negotiations 
so we can pass another bill before recessing for the holidays. There 
are a lot of people in this country, all throughout the country, who 
are hurting, who are anxious, and who are worried about their ability 
to pay the rent and to meet their other obligations in the face of this 
pandemic, and I think it would be a dereliction of duty on our part to 
leave here without addressing those real needs.

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  Earlier this year, we worked in a quick, bipartisan fashion to pass 
relief bills totaling more than $3 trillion. Thinking back on it, it 
was pretty remarkable to do as much as we did as fast as we did, but we 
knew we were up against a common enemy in this virus, and we knew we 
had to respond quickly, and we did. The funding we provided has gone a 
long way to support our healthcare and economic response, but as our 
war against COVID-19 continues to rage on, additional support is 
needed, and it is needed now.
  The good news is, as earlier, there are a number of areas that we 
agree on what the support should look like, including funding for 
schools, assistance for the hardest hit workers and small businesses, 
and another investment in the distribution of the vaccine that can't 
come soon enough, but we remain hung up on a couple of important 
points, including liability protection for businesses, schools, 
nonprofits, and others who in good faith did their best to follow 
guidance from the CDC and other public health authorities but now face 
the prospect of litigation.
  It is pretty hard to follow the guidance as knowledge of this virus 
has evolved. I remember before April, the head of the CDC, including 
Dr. Fauci and others, said that masks were useless. Then they changed 
their guidance in April. That is fine. I respect that based on what we 
have learned about the virus. But we simply can't expose people who 
have tried their best to muddle along in the face of this pandemic, 
following the guidance from public health officials, and say: You 
didn't know then what we know now, so you must have been negligent, and 
you need to pay compensation in the form of litigation.
  Well, I don't think that is fair to those entities, those 
individuals, those businesses, those schools, those churches, mosques, 
and synagogues. But this is something that is on the minds of a lot of 
people, from healthcare workers, to teachers, to nonprofits, to small 
business owners. Those who continue to provide essential services and 
goods didn't have any choice but to show up and go to work. Now they 
are worried that by opening their doors to people who really needed 
their help at the time, they have also now opened themselves up to an 
endless parade of lawsuits by the trial bar.
  We all know that lawyers can be very creative and opportunistic. That 
is part of what lawyering involves. But the litigation we expect 
against doctors, nurses, colleges, churches, small businesses--anyone 
and everyone could be blamed for another person's harm. If those 
lawsuits are feasible, they will follow. And the statute of limitations 
is a couple years, so even though we are not necessarily seeing it now, 
we do know that class action litigation could be filed in any favorable 
jurisdiction anywhere in the country and basically bankrupt many 
businesses and certainly discourage businesses from safely reopening 
and following those guidelines.
  I think there is another reason to reward people who have tried their 
best to follow those guidelines--because it ensures more compliance. To 
now play a game of ``gotcha'' with them and say: It wasn't good enough, 
so now you are going to have to pay or maybe even just defend a lawsuit 
that you ultimately will win--we all know that will cost a lot of money 
and will take a lot of time, and I would prefer to see them rebuild 
their businesses and restore the jobs that were lost as a result of the 
pandemic
  So because of my concern about the need for some liability shield, we 
introduced a bill called the SAFE TO WORK Act that provides commonsense 
protections for those who acted in good faith to keep their customers 
and their employees safe, while still preserving the right to sue for 
those who were victims of gross negligence or intentional misconduct.
  This is not a blanket liability shield that won't permit the really 
truly bad actors from facing due consequences. It won't ban coronavirus 
lawsuits, and it won't give anyone a get-out-of-jail-free card. So we 
need to get that straight up front. In cases of gross negligence or 
willful misconduct, where the applicable public health guidelines were 
not followed, the person affected has every right to sue and be made 
whole in a court of law. No one is asking to change that. What we do 
need, though, is to put safeguards in place to ensure that those who 
operated in good faith and were following all the relevant guidelines, 
even as they evolved over time, cannot be sued out of existence.
  First and foremost are protections for our incredible healthcare 
heroes who made tremendous physical and mental sacrifices over the last 
several months. This legislation sets a willful misconduct or gross 
negligence standard for coronavirus-related medical liability suits to 
ensure that only legitimate cases are brought against our healthcare 
workers who, again, didn't have any choice but to show up for work.
  In addition to protecting our healthcare heroes, we need to ensure 
that a fear of lawsuits doesn't prevent schools, nonprofits, churches, 
small businesses, and a range of other organizations and institutions 
that are vital to our communities and our economy from opening their 
doors. This spells out in black and white that these entities will be 
protected from COVID-19 exposure claims as long as they comply with 
mandatory public health guidelines.
  It is true that a number of States have already provided similar 
protections, including the minority leader's home State of New York, 
and it is time that we extend these liability limitations to the rest 
of the country, particularly States like mine where the legislature 
does not meet on a continual basis. They haven't even been in session 
during 2020. They will go into session in January, and I presume they 
will try to fill in any holes they feel like we left when it comes to 
liability protection. But without a uniform Federal standard, we are 
going to end up in a dangerous venue shopping situation, and it is only 
to be expected that the lawyers will find the place most favorable for 
their lawsuits. They will seek to pursue those claims using class 
action procedures, and we will be right back at the worst nightmare 
that I think many folks would have contemplated unless we provide for 
this Federal liability shield.
  The goal is not to protect bad actors. What we do need to clearly 
spell out is for the schools, colleges, nonprofits, churches, and 
businesses that are asking us to provide them some guidance and some 
security.
  Our Democratic colleagues have not expressed a lot of enthusiasm for 
this legislation, and my Republican colleagues and I have tried to work 
with them to reach a result that both sides can support. But the nature 
of compromise, as we all know, is give-and-take, but so far it has been 
pretty much one-sided. We have offered changes to appease our 
Democratic colleagues' concerns while still preserving the basic goal 
of the legislation, but the truth is, they really haven't moved much in 
any meaningful way.
  I think the truth is that our country's long-term economic recovery 
from this virus depends on these liability protections in large part. 
Businesses doing the best they can during a worldwide emergency should 
not face bankruptcy because of concerns about the trial bar. I mean, 
who are we here working for--the American people or for lawyers who--
and this isn't necessarily designed to be a criticism--who are looking 
out for their own economic interests first and foremost? Our view must 
be much broader than that, and the greatest good for the greatest 
number I think should be our guiding principle.
  Our essential workers and institutions need to know that if they have 
been operating in good faith and obeying the guidelines that have been 
promulgated by the public health authorities, they won't be subjected 
to litigation, and only Congress can provide that certainty.
  Now, this is not a permanent Federal takeover of State tort law by 
any means. It really is comparable to what we did after Y2K--or in the 
run up to Y2K--and also with other national

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emergencies like 9/11. We have even given some protection to 
pharmaceutical companies, which we have asked to take risks to come up 
with world-class vaccines and therapies, to encourage them and to 
incentivize them to do that because we know it is in the public 
interest.
  But across the country, we are already seeing these lawsuits rolling 
in, and without action from Congress, we are going to emerge from this 
pandemic only to find ourselves in not another wave of the virus but in 
a second wave of litigation that will be devastating for many.
  In order for our country and our economy to recover, these workers 
and these institutions need to know that they can follow the guidelines 
and then safely reopen their doors and do their jobs with confidence. 
They need to know that if they follow these guidelines and act in good 
faith, they won't be subjected to perhaps business-ending litigation 
that could tie them up in court and drain their remaining resources 
dry.
  As I have said, the way we reach agreements around here is through 
bipartisan negotiations. It took a little compromise, and neither side 
achieved 100 percent of what they wanted, but we eventually have gotten 
there. We have done that four times in the coronavirus response, and I 
hope we can do it again here.
  I hope our Democratic colleagues will approach these negotiations 
with the gravity they deserve. We can't leave people waiting and 
wondering what their future looks like any longer if there is something 
we can do to provide them some safety and security and some confidence 
about what the future may look like.
  I hope we will all work together to deliver these critical liability 
protections for folks across the country in all 50 States.
  The PRESIDING OFFICER. The Senator from Maryland.

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