Just A Bill in the Virginia House of Delegates

by James C. Sherlock

Remember the educational cartoon video “I’m Just a Bill”?  Well this is different. This is the Virginia General Assembly in emergency session 2020.

I offer here an example captured in the brief history of a single bill in the House of Delegates that is very illustrative of the vast differences between the attitudes of the two parties.

Let’s see what happened to a bill to provide immunity from civil claims related to the transmission of or exposure to the COVID-19 virus when it got into the House Committee for Courts of Justice.

We will first examine House Bill 5037 offered by Republican Jason Miyares. It was designed to grant immunity, except in cases of gross negligence or willful misconduct, to public officials and businesses who followed the rules.

To quote the main provisions of HB 5037 COVID-19 virus; immunity from civil claims related to the transmission of or exposure to the virus:

1. Ҥ 1. A. For the purposes of this act, unless the context requires otherwise:
“Person” includes (i) individuals, corporations, nonprofit corporations, business trusts, estates, trusts, partnerships, limited liability companies, sole proprietorships, associations, and joint ventures; (ii) the Commonwealth or any locality, or any agent thereof, or any person acting on behalf of the Commonwealth or any locality; and (iii) any other legal or commercial entity.
“Personal protective equipment” means equipment worn to minimize exposure to the COVID-19 virus and includes gloves, medical masks, N-95 respirators, eye protection, gowns, aprons, boots or closed-toe work shoes, cleaning detergents, hand sanitizers, and cleaning products.
B. In the absence of gross negligence or willful misconduct, no person shall be liable for any civil cause of action arising from any act or omission alleged to have resulted in the contraction of or exposure to the COVID-19 virus, provided such person has complied with applicable federal, state, and local policies, procedures, and guidance regarding COVID-19.
C. In the absence of gross negligence or willful misconduct, no person who designs, manufactures, labels, or distributes any personal protective equipment in response to the COVID-19 virus shall be liable for any civil cause of action arising out of the use of such equipment.
D. The provisions of this act shall not limit or abrogate any other defenses or immunities available at law.
E. The provisions of this act shall not apply to claims before the Virginia Workers’ Compensation Commission seeking benefits payable under the Virginia Workers’ Compensation Act (§ 65.2-100 et seq.).”

The Democrats who run the Committee would not have that. They “incorporated” Del. Miyares bill into House Bill 5074, Del. Sullivan, eliminated any discussion of PPE and added the following:

  • Changed B. to read: “In the absence of gross negligence or willful misconduct, no person shall be liable for any civil cause of action arising from any act or omission alleged to have resulted in the contraction of or exposure to the COVID-19 virus: “

“provided that, with respect to the location at issue, such person has complied with the most recent binding applicable federal, state, and local laws, policies, procedures, and guidance regarding COVID-19 at the time the cause of action accrued, including without limitation and at a minimum the COVID-19 Emergency Temporary Standard or any COVID-19 Permanent Standard, whichever is then in effect. The person shall bear the burden of proving entitlement to the immunity provided herein.”

  • Eliminated C. and added in its place:

“Every person shall provide, with respect to any location owned by the person or under the person’s possession, custody, or control, reasonable notice of actions taken by the person for the purpose of reducing the risk of transmission of COVID-19 to individuals present on the premises. In the absence of gross negligence or willful misconduct, no person shall be liable for the failure of any individual not under the control of such person to comply with rules, policies, or guidelines contained in the notice required by this act. This act shall not apply to any premises owned by an individual, other than a premises that is used in the operation of a sole proprietorship.”

  • and added to E.:

“The provisions of this act do not create a defense to liability in any administrative proceeding or civil action brought to enforce the provisions of the COVID-19 Emergency Temporary Standard or any COVID-19 Permanent Standard, whichever is then in effect.”

It is hard to figure out how the final bill provides any functional liability protections to any Virginia public official or business, especially business. That, of course, was the Democrats’ intent. It is as lawyer and plaintiff friendly as possible.

The House Courts of Justice Committee has 21 members, 13 Democrats and 8 Republicans. The vote on HB 5074, the Democratic version, was 13 yeas, 8 nays.
Of the 13 Democrats, eleven are lawyers.  One of the two non-lawyers, Vice Chair Vivian Watts, counts the Virginia Trail Lawyers Association as her top donor.

It is particularly illustrative that ”The person shall bear the burden of proving entitlement to the immunity provided herein.” Nice touch.

Another: “The provisions of this act do not create a defense to liability in any administrative proceeding or civil action brought to enforce the provisions of the COVID-19 Emergency Temporary Standard or any COVID-19 Permanent Standard, whichever is then in effect.”

That is a pretty straightforward roadmap for plaintiffs lawyers should they need one.

Virginia’s COVID 19 Temporary Emergency Standard, issued on July 15, will be enforced by the Virginia Occupational Safety and Health program (VOSH).
It was analyzed by Ogletree Deakins, a massive law firm with offices all over this country and the world as follows:

“The emergency standard includes an extensive list of requirements that all employers within VOSH’s jurisdiction must follow, regardless of the level of exposure to COVID-19, and additional requirements for employers based on exposure level. The emergency standard goes into effect on July 27, 2020. The standard will expire after six months or “upon expiration of the Governor’s State of Emergency,” but the Board will be considering the adoption of a permanent standard during this same time period.
Key Takeaways
…The standard is comprehensive, and employers—particularly those outside of the healthcare industry—may find compliance to be a challenge.”

“May find compliance a challenge.” Nice lawyerly words.

Yet HB 5074, the Democratic version, is still titled “Immunity from civil claims related to the transmission of or exposure to the COVID-19 virus; emergency.

The title constitutes false advertising.

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25 responses to “Just A Bill in the Virginia House of Delegates

  1. The message to business owners and potential investors is clear: Virginia does not want you. You will be sued and you will lose.

  2. BUT.. as I understand it, at the federal level employers and owners are given lots of attention and concern about liability. In many situations liability has been waived. However, the worker doesn’t have guarantees of health insurance/ access to health care at affordable rates if they are essential and end up with COVID.

    Both individual initiatives are too far in one direction. It’s not fair to protect one side while giving the other none, no matter which you propose to protect.

    • I have to agree. Somehow the idea that an employer needs “protection” but not the worker seems lopsided.

      • The state has passed a massive worker protection reg. I wrote about it here. It is passing workers comp expansions for COVID. It is already lopsided.

    • Cite your examples of federal level protection for COVID liability. Sen. McConnell made it a must have in a bi-partisan bill, but there is no such bill.

      It is unfair to place the burden of proof on either an employer or an employee or customer to definitively show that they contracted the virus within a particular business or workplace or somewhere else.

      It’s going to be very difficult to prove causation in the context of COVID-19, for someone to pinpoint whether they did or did not catch the virus in a specific place at a specific time.

      Since definitive proof of place and time of contagion in unavailable to either party in a lawsuit, Del. Miyares bill held managers of places, whether government or private, to a standard in which compliance with applicable federal, state, and local policies, procedures, and guidance regarding COVID-19 is assumed absent demonstrable gross negligence or willful misconduct.

      The Democratic bill shifts the burden of proof to the manager of the workplace or any place where the public comes to prove that he qualifies for immunity and to comply with new Virginia regulations that are virtually impossible to provably meet.

  3. just out of curiosity is the term ” gross negligence or willful misconduct” defined in the legislation or is it a standard legal construct or just in the eye of the beholder?

    I DO agree trying to figure out where someone got the virus will not be easy to do… and would further agree that the burden of proof should be on the person claiming they got it at a particular place and let a jury or judge sort it out.

    I don’t want to see businesses do a crappy job protecting employees and customers then get to evade responsibility – either.

  4. A quick check of the internet shows these two definitions:

    Gross negligence is characterized by a complete lack of care on the defendant’s part and has been defined as the absence of slight diligence or the want of even scant care. As a general matter, it is usually up to the jury to decide whether the defendant acted with gross negligence. 3 However, gross negligence does not exist as a matter of law if the defendant showed some degree of care.

    Willful Misconduct means intentionally doing that which should not be done or intentionally failing to do that which should be done, knowing that injury to a person will probably result or recklessly disregarding the possibility that injury to a person may result.

    • right – but if these phrases are what is in the law – is it still a matter of opinion?

      It just seems that there is enough looseness in the wording that it ends up in court …. and a jury ends up deciding – which probably would not be good for the employer if the jury is largely worker types.

      But I do not know the law so it’s possible these are typical phrases that one would see in a lot of law.

      • Your ignorance has to be feigned (you can’t really be this dumb.) There are reams and reams of cases defining those terms, and yes, that’s the work of a lawyer and the other guy has a lawyer so a judge or jury gets to decide sometimes. But this is hardly a new approach.

        • Well some of us are – even when we say others must be, you know?

          So the question is – are there more precise terms like SHALL and WILL that might negate the need for courts?

          Do we purposely write legislation that is vague or if we do, why, if we can write it more precisely so the “legal” is less uncertain?

          surely some dumbasses are capable of expanding their thinking to include such things, no?

  5. If Virginia business owners had any stones they’d take away all of their legal work from Reed Smith, where Sullivan is an income partner. Secondary boycotts for political reasons do not violate antitrust laws.

  6. Indemnify — picking a winner.

  7. Eric the Half a Troll

    I’ve got an idea. Let’s just not pass special laws that protect employers from the consequences of not taking care of their employees. That works for me.

    • Robots taking your sandwich order or assembling a car don’t sue. Employees in foreign sweatshops do not sue. If a business is closed, it need not fear frivolous complaints, so it stays closed. That’s the economy Eric the Half Wit Troll wants, and that is what he will get.

      • Eric the Half a Troll

        So if we don’t allow employers to not protect their employees they will all go out of business. That is the new GOP position then…

  8. This year, I worked on some FCC radio matters that will enable a big company to replace workers with computer-controlled robots.

    Stomp, stomp, stomp. Not fair; not fair.

    • You know, here’s what HR professionals say to each other in private: Human beings are a pain in the butt. (I had four years managing HR in a state agency, and what you see from that vantage and hear from that staff is hilarious.)

  9. You know, the narrative that “we’ll replace you with robots and computers” is a bit silly as for any industry, if robots/computers can replace workers – they will… especially in a competitive environment – the strongest competitors will use everything they can to outdo the competition and that includes kiosks and phone app ordering for fast food, real estate over computers, etc.

    Automation is inevitable and it has little to do with worker rights except for the folks who are opposed to worker rights and need boogeymen to reinforce their claims..

    They used to use that for instruction… you know.. all that onilne learning but they changed their tune here lately on it!

    • Some truth in that. It is an economic decision, Larry, and as the cost of human labor grows, with regulations and mandated benefits and increased legal liability, the scale just slowly tips.

      • It does but other jobs open up also – that require more/different skill sets. This has been going on for as long as the planet has had an economy.

        And again, it’s a totally different thing than fair treatment of workers (no matter their skills).

        College professors and teachers get tenure. Airline pilots and casino workers have unions that assure fair treatment of them.

        I just don’t understand Conservatives hostility towards workers.

        We have many, many examples of outright predation of workers when we don’t have protections for them. We treat the employer as if they have some superior rights than workers and they simply do not.

        We refuse to make E-verify the law of the land and continue to allow the use of undocumented labor primarily to provide employers with cheap labor with no worker protections..

  10. James Wyatt Whitehead V

    I hope they pay robots. I want to purchase one and send it to work for me.

  11. What this discussion seems to be missing is that the Covid 19 emergency standard exists since the week of 27 July in the Virginia Administrative Code at §16VAC25-220, Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 https://www.doli.virginia.gov/wp-content/uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FOR-PUBLIC-DISTRIBUTION-FINAL-7.17.2020.pdf

    It is subject to enforcement by Department of Labor and Industry (DOLI) of the Commonwealth of Virginia. So those here who worry in their comments about worker protections have what has been dubbed the “Department of Labor and Labor” under the Northam administration to look to for such protections.

    The legislation offered by Del. Miyares and upended by the Democrats on the House Committee for Courts of Justice does not affect the enforcement of that regulation by the state.

    It only affects civil law suits.

    Miyares’ proposed legislation limited civil suits to cases of gross negligence or willful misconduct in the carrying out of such regulations. It is reasonable to assume that the state regulator can sort out less egregious violations. Seems a fair compromise between the activities of regulators and the actions of the courts.

    The changes made by the Democrats thus had nothing to do with protecting workers, only in expanding infinitely the case opportunities for trial lawyers.

    Look again at my breakout of the Democratic membership of that committee, 13 members, 11 lawyers and one of two non-lawyers whose biggest donor is the trial lawyers, and you will understand.

  12. If you can’t figure out what’s being bought and sold, it’s you.

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