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Democratic Leaders In Salem Agree To Explore COVID Lawsuit Protections

House Speaker Tina Kotek motions to someone on the House floor on April 11, 2019.
House Speaker Tina Kotek motions to someone on the House floor on April 11, 2019.

House Speaker Tina Kotek has agreed to explore giving businesses, schools and others protection from lawsuits after most of her chamber signaled support.

Democratic leaders in the Oregon House of Representatives have agreed to explore protecting businesses, schools, local governments and others from being sued if someone catches COVID-19 on their premises.

Following mounting pressure from Republicans, industry groups and 10 members of her own caucus, House Speaker Tina Kotek signaled to state representatives in a Wednesday evening email that she would convene a work group to explore the issue, and potentially take it up in another special session expected in July.

That message came after a day in which House Republicans — who have prioritized the liability protections — refused to enact rule changes to hasten the speed of the current special legislative session. House leaders had hoped to begin taking up bills for final passage on the floor Wednesday evening but were blocked when Republicans refused to waive constitutional provisions ensuring bills cannot be introduced and passed on the same day.

On Thursday morning, Republicans agreed to waive the rules, largely because of Kotek’s commitment.

Kotek’s announcement also came less than an hour after 10 Democratic state representatives sent a letter to Kotek and Senate President Peter Courtney calling for more legal protections as businesses and other entities re-open in the pandemic.

“We want to express our disappointment over the lack of any legislation addressing the serious liability concerns that have been raised by health care providers, local governments, schools, nonprofits and businesses who fear the lawsuits they might face over the COVID-19 pandemic,” the letter said. “We are hearing from entities across the spectrum that one of their biggest concerns right now is the threat they are facing from COVID-19 lawsuits.”

The 22-member House Republican caucus immediately threw its support behind the letter. Industry groups affiliated with business, schools, local governments and health care organizations have also called for protection. Taken together, Republicans and the 10 supportive Democrats make up a majority of the 60-member House chamber.

One Democratic representative, Caddy McKeown of Coos Bay, has introduced an amendment that would create the protections she and others are advocating in the current legislative session. That change appeared unlikely Thursday morning.

“I’m not overly optimistic” about the amendment, said state Rep. Daniel Bonham, R-The Dalles, the deputy minority leader. “But at the same time, you’re going to watch testimony today with broad support around the building.”

Kotek informed lawmakers in an afternoon committee hearing that she would not entertain McKeown's motion, preferring instead to kick the issue to the the joint House-Senate work group.

The issue of partial immunity from COVID-19-related lawsuits has played out across the country and within Congress as the nation’s economy slowly reopens. A wide array of industries have raised concerns that they could be swamped by a raft of lawsuits, potentially sinking under the weight of legal bills. In response to those concerns, a growing number of states have taken up protections.

Oregon lawmakers are currently considering extending some legal protections to hotels and motels operating “isolation shelters” that have agreed to house people isolating because of possible exposure to COVID-19. Proponents of such protections say they need to be more expansive.

“As we reopen, the single biggest concern I hear is about the potential for costly and unfair lawsuits that could kill a business struggling to get back on its feet,” Sandra McDonough, president and CEO of Oregon Business and Industry, said in testimony she prepared to advocate for legal protections.

Opponents of liability protections say they are largely unnecessary since it’s extremely hard to definitively prove a person contracted COVID-19 from a specific place. But they warn that blanket liability protections could disincentivize employers and others from taking appropriate steps to guard against the spread of COVID-19.

“What we’re worried about is, will they pass something that impacts the people who’ve had loved ones harmed in nursing homes?” said Arthur Towers, a lobbyist for the Oregon Trial Lawyers Association. “That’s at the core of this issue. Are we going to fail to hold accountable the food processing plants in which so many people have been exposed?”

Labor unions, worried about employee protections, have also voiced concerns.

While it’s unclear what any liability protections might ultimately look like in Oregon, McKeown’s proposed amendment offers an idea.

The amendment, part of an omnibus bill addressing a wide range of issues, was being closely watched by lobbyists on both sides Thursday morning. It would ensure “a person is not liable for damages arising out of acts or omissions” that nonetheless complied with state guidance around COVID-19. The proposal would not offer protections for “gross negligence or reckless, wanton or intentional misconduct” and protections would expire with Gov. Kate Brown’s state of emergency.

At Thursday afternoon's hearing, McKeown and other lawmakers spoke forcefully for the amendment, saying it would ensure that schools, businesses and other entities can operate without the worry of frivolous litigation.

“This is the biggest emergency that we can agree on today,” said state Rep. Mark Owens, R-Crane. “Our schools will not be able to open” without protections.

But some lawmakers were plainly not convinced. Rep. Andrea Salinas, a Lake Oswego Democrat and chair of the House Health Care Committee, suggested McKeown’s proposal raised more questions than it answers.

“We want to be really thoughtful and tailor what we are talking about here,” Salinas said. “I’m really questioning this amendment.”

Copyright 2020 Oregon Public Broadcasting

Dirk VanderHart is JPR's Salem correspondent reporting from the Oregon State Capitol. His reporting is funded through a collaboration between public radio stations around the Northwest called the Northwest News Network.