Coronavirus

Floor Speech

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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.

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 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.

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