Op-Ed: No corporate immunity

Monday, July 27, 2020 - 3:54pm

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With the help of U.S. Senate Republicans, the University of Michigan is lobbying to push the costs of staying safe during the pandemic onto students, faculty and campus workers. The GOP proposal, announced on Monday, includes liability shields that protect businesses, schools, and other organizations from COVID-related lawsuits. The American Council on Education and the American Association of Universities — both of which include the University of Michigan, which has declared an intent to re-open this fall, among its members — have joined corporations in calling for this corporate immunity to be included in the final version of coronavirus aid legislation. Lawmakers at the state level are discussing similar legislation in Lansing, Mich. 

Corporate immunity would protect schools from legal accountability for failing to implement reasonable safety precautions on campus. This does not accelerate a return to normalcy, but rather disincentivizes schools from reopening safely and risks the lives of students, faculty and campus workers. Law student groups at more than a dozen universities have petitioned their schools to stop lobbying for corporate immunity. Michigan Parity Project's petition is still gathering signatures.

Universities should not reopen if they cannot provide a safe environment for those on campus. This includes providing personal protective equipment, implementing social distancing and building out an infrastructure for testing and contact tracing. With corporate immunity, schools can disregard complex and costly safety precautions, and those impacted by the disease — one that spreads easily in libraries, cafeterias and other places in which people gather in close quarters — will have no recourse.  

Corporate immunity would also reinforce the disparate impact of the virus; communities of color are affected by the virus at much higher rates. For example, African Americans constitute 14 percent of Michigan’s population, but 40 percent of deaths from coronavirus. With corporate immunity, businesses and universities have no incentive to address this disparity. With the University’s recent focus on addressing systemic racism, how can it support legislation that creates risks for students, faculty and workers of color?

Proponents of corporate immunity believe that businesses and schools that are beginning to reopen need more protection from frivolous lawsuits. To stay open during the pandemic, they argue that schools and businesses have engaged in lots of on-the-fly decision making that might be susceptible to legal challenges once the dust settles. They say corporations need to be encouraged to re-open rather than concerned about what might happen in court. This view, however, ignores the reality of existing state law.

In order to avoid liability under state tort law, schools and businesses need only take reasonable precautions to limit risks of injury. Businesses that provide personal protective equipment or implement social distancing are likely safe under this standard. Victims bringing suit would have to show that the university or business caused the exposure. Schools or businesses faced with a lawsuit can defend themselves by demonstrating that the victim’s own conduct was careless and contributed to the injury. Translated from legalese — it is already very difficult to sue schools and businesses for the effects of COVID-19. Yet corporations and universities remain unsatisfied. They are demanding protection for unreasonable safety failures as well. Corporate immunity would enact a new, significant legal barrier and leave sick students and workers bearing the cost of their school’s or employer’s negligence.

This is a bridge too far. People rely on civil litigation to ensure corporations behave responsibly. Eliminating this check on corporate power allows them to flout safety standards in their zeal to reopen. The proposed law rewards risk rather than reasonable precautions.

As law students, professors encourage us to think about how legal rules allocate burdens between would-be plaintiffs and defendants. As Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, said of corporate immunity, “Liability shields don’t make the cost go away. Those insisting on a liability shield are saying the cost should fall on workers, not employers.” This is an unacceptable trade-off.

We — students, faculty and the community at large — rely on campus workers. They serve our food, clean and maintain our buildings, manage the equipment in our increasingly connected classrooms and much more. We are all better off when our campus workers can rely on a safe, healthy workplace. Legal rules should encourage employers to enact safe conditions. Corporate immunity does the opposite. It would give the University license to do the bare minimum, forcing the campus workers to bear the burden of re-opening with little security. This will not do.

The University of Michigan must speak out against both federal and state-level corporate immunity legislation and pledge to not require liability waivers from students, faculty and employees that return to campus. I can’t wait to return to in-person instruction. I can’t wait to chat with friends in the hallways between classes. I can’t wait to pop into a professor’s actual office to ask a question instead of dialing in to a Zoom call. I know this requires that I take all of the proper precautions available to me, but I am more than willing to take them. It also requires that the University works hard to ensure safe conditions on campus. As long as the University lobbies for corporate immunity, I cannot trust its safety efforts.

Aditya Vedapudi is an organizer with Michigan Parity Project, a rising 2L at the University of Michigan Law School and can be reached at adityav@umich.edu.