Doesn’t the 13th Amendment Apply?

What’s the difference between a soldier being ordered into a condition of risk and danger and a private citizen ordered by the President to get back to work in a risky environment? If the soldier volunteered, took an oath, I see the difference. If the soldier were drafted, it gets a bit dicey, although even draftees take an oath. What if a worker defies a go back to work order? Jail? Massive fine? And if worker goes back to work, have the state and federal workplace safety rules (federal: under the Occupational Safety and Health Administration) been suspended? What kinds of risks can we force unwilling workers to take?

Aside from workplace safety rules, can the government exempt private and governmental employers from responsibility for an unsafe workplace if that employer is simply accepting governmental suggestions to reopen? Who looks after the welfare of the employees under those circumstances? And what about the 13^th Amendment? You know, the one that repealed slavery.

“Governors around the country are attempting to restart the economy by easing restrictions put in place to prevent the spread of COVID-19. The prospect of returning to ‘normal’ amid a pandemic has businesses lobbying Congress to grant them sweeping immunity from civil liability for failure to adequately protect workers and customers from infection.

“Senate Majority Leader Mitch McConnell has warned of an ‘avalanche’ of lawsuits that will stymie economic recovery efforts if Congress does not act quickly. He said he won’t let another coronavirus bailout pass the Senate unless it also shields companies from coronavirus-related liability.” FastCompany.com, May 2^nd.

Blanket liability waivers obviously empower employers who just don’t care about their workers and will relax even normal safety rules. Writing for the above issue of FastCompany.com, Timothy Lytton, distinguished university professor and professor of law at Georgia State University, says: As a general matter, businesses are subject to civil liability for carelessness that causes injury to others. The law defines carelessness as a failure to exercise ‘reasonable care.’

In applying this standard, courts consider several factors:

Did the business take available cost-effective precautions to prevent injury?

Did the business comply with laws or regulations designed to protect public health and safety?

Did the business conform to industry standards for health and safety?

Did the business exercise common sense?

If the answer to one or more of the questions is no, then a court may conclude that the business was careless and is subject to liability for damages to customers who suffered harm.

In the context of the current pandemic, I believe that reasonable care sets a clear standard for business owners. Invest in cost-effective precautions such as ensuring employees wear masks and gloves and keeping customers apart. Follow the guidance of health officials and all health and safety regulations. Keep up with what other similar businesses are doing to prevent infection. Use common sense.

Law-abiding, thoughtful business owners—those who care about the safety of their employees and their patrons—are likely to exercise reasonable care to prevent COVID-19 transmission with or without the threat of a lawsuit…

To successfully sue a business for COVID-19 transmission, a patron would have to prove that he or she contracted COVID-19 from the business and not from some other source. However, most people infected with COVID-19 currently have no reliable way of identifying the source of their infection. The gap of 3 to 11 days between infection and illness, the difficulty of recalling all of one’s contacts during that interval, and limited testing for the virus present formidable obstacles to establishing causation.

Moreover, a business would not be liable to patrons who knowingly and voluntarily assumed the risk of infection. Patrons of crowded stores or businesses where many customers and employees are not wearing masks, for example, would not have viable legal claims even if they can prove carelessness and causation.

So a blanket waiver, such as the one GOP Senate Minority Leader Mitch McConnell wants to grant, only benefits careless business operators. Hmmm. Does that sound as stupid to you as it does to me? He would effectively repeal OSHA rules. All this to get the stock market back up, under a rather naïve assumption that all this will not provoke a much more devasting second wave of CV-19, to get Donald Trump and the GOP Senate majority reelected. I guess they’re figuring that those who die from CV19 can’t vote anyway. That the states opening up early are usually the ones with the lowest rates of healthcare coverage in the country should not surprise you.

Want to know how the government really feels about this reopening effort? Put these two facts together: ONE: “The federal government placed orders for well over 100,000 new body bags to hold victims of COVID-19 in April, according to internal administration documents obtained by NBC News, as well as public records.” NBC News, May 1^st. and, TWO: “Florida health officials have halted the publication of up-to-the-minute death statistics related to the coronavirus pandemic that have, by law, been compiled by medical examiners in the state… The death count compiled by the Medical Examiners Commission was often found to be higher than the figures provided by Florida’s Department of Health, the Tampa Bay Times reported, prompting a review of the data and a suspension of its publication… State officials have not specified what they find objectionable about the medical examiners’ count, nor when they might allow it to be made public again, the Times said.” Yahoo News, May 1^st.

So statutorily mandated medical doctors, directly examining all the CV-19 corpses, contradicting political appointees, who somehow have better information on medical statistics, need to zip their lips? Makes you feel confident, even warm and fuzzy inside, huh? Florida Governor Ron DeSantis, an ardent Trump supporter, is one of the most vociferous supporters of reopening the economy.

            I’m Peter Dekom, and I am watching bumbling, fact-averse politicians, so completely ignore their rising mortality rates, facing an inability to test sufficiently even to know what risks they are causing, win public office… but they do.