The Fool’s Gold of Immunity

Dec. 10, 2020

Why a legal shield against COVID lawsuits may not be all it's cracked up to be.

As of this writing, negotiations in Congress over a desperately needed economic stimulus are foundering over one issue in particular: Immunity from COVID-related lawsuits.

Senate Majority Leader Mitch McConnell, in particular, is playing hardball. His position had been that all businesses in America should be forever relieved of legal responsibility for creating conditions in which their employees become infected with COVID-19. He recently backed off that line, but only on the condition that Democrats give up the idea of furnishing federal aid to state and local governments. For Democrats, that’s a nonstarter.

There’s a lot at stake. Processing facilities have been epicenters for infection, especially meat and poultry plants in sparely populated areas where they’re the major employer. Tyson Foods, JBS USA and other meatpackers have already been the target of wrongful-death suits.

On the face of it, blanket legal immunity would seem to be a good thing for the food industry, or anyone else. Who doesn’t want a shield against pesky attorneys? But this might very well be a case of “be careful what you wish for.”

Let’s leave aside the question of whether it’s ethically or morally justifiable to strip legal protection from...well, the entire country. (Immunity would apply to other businesses that have been served with COVID wrongful-death suits, like nursing homes and retail stores.) There are several benefits that the food industry would derive from not having legal immunity:

Avoiding looking like there’s something to hide. You can cuss trial lawyers until you’re blue in the face, but if you insist that you never even face the possibility of answering for something in court, people are going to suspect that you have something to answer for.

Discovering what might really be going on in your plants. The wrongful death suit against Tyson centers on its pork processing plant in Waterloo, Iowa. Absolutely shocking allegations have come to light, including a charge that managers started a betting pool on how many employees would come down with COVID. Yes, these are just allegations in a lawsuit, but Tyson is taking them seriously enough to suspend the accused managers. Lawsuits are a last resort of people who think they’re not being listened to. Sometimes it pays to listen.

Incentivizing safety and other humane measures. Everyone wants to keep people safe, at least in theory. The problem comes when temptation arises to cut corners. Legal liability reduces that temptation.

When Upton Sinclair and others revealed disgusting practices in the meat industry during the early 20th century, the government responded by passing the Pure Food and Drug Act. If it had passed blanket legal immunity instead, who knows what might be in our sausage today.

And don’t forget the biggest problem of all with legal immunity:

What the government gives, it can take away. Since I’m not a lawyer, I’m not sure if this applies to immunity, strictly speaking. But if the government puts its thumb too heavily on the scale in this case, it’s not hard to envision an eventual regulatory backlash against Big Food about other legal protections, as well as labor issues, safety and other aspects - especially under a new Democratic administration.

McConnell is standing fast on immunity. I’m not sure it’s in the best interest of the food community to stand behind him.