HAVING TRIED and failed to make Democrats meet his conditions for approving additional small-business funding last month, Senate Majority Leader Mitch McConnell (R-Ky.) appears intent on staging yet another partisan showdown over federal coronavirus relief when the upper chamber returns to Washington on Monday.
At issue is aid to reeling state and local governments, possibly hundreds of billions of dollars’ worth, which Mr. McConnell previously linked to allowing state bankruptcy, only to meet with resistance from both Democrats and Republicans. Now the majority leader says he’s open to aid for states but only if it’s tied to legislation limiting employee and other lawsuits over alleged coronavirus safety failings at reopening businesses. “That’s going to be my red line for the next negotiation,” Mr. McConnell said on Fox News Radio last Monday.


Democrats are throwing cold water on this latest ploy, and understandably so. The Senate majority leader may have powerful business lobbies behind him, but he still risks violating what is, or should be, a cardinal rule for both parties during the crisis: Do not exploit it to pursue preexisting policy agendas. Curbing class-action and other lawsuits on behalf of workers and consumers — “tort reform” — has been on the GOP wish list for years, and Mr. McConnell apparently sees an opportunity to advance it, using critical state and local budget shortfalls as leverage.
How the revamp of state tort laws Mr. McConnell envisions could be accomplished in the short run, amid a pandemic, is one of many thorny questions his proposal raises but does not answer. Corporations have been spooked by the suit pending on behalf of workers at a Smithfield meatpacking plant in Missouri, which alleges that many employees are at risk of being infected because of the company’s failure to provide adequate protective gear or social distancing. (Smithfield denies the charges.) Perhaps businesses, and Mr. McConnell, should be a bit less indignant about supposed plaintiff lawyer opportunism and a bit more worried by the possibility that the allegations in the lawsuit, or others like it, might be true.
Given the medical and scientific uncertainty still surrounding the coronavirus, even quite conscientious employers — the majority, to be sure — may find it hard to comprehend their legal responsibilities, let alone meet them. Existing state tort law may provide them with some protection already, in that it often requires proof of a causal link between company conduct and worker or consumer injury; that’s not easy to show in the case of infection by an invisible pathogen.
Still, there may be a case for additional protection from lawsuits for the duration of the crisis — a “safe harbor” in legal parlance — if and when companies follow best health and safety practices laid down by state and federal authorities. Some proposalsfrom business, however, go well beyond that. Government regulation would potentially be a more consistent remedy than episodic litigation, but business generally resists that, too.

Whatever Congress does should not help companies make excuses for potentially deadly failures, but strengthen their incentives to prevent such failures. If that’s all that Mr. McConnell has in mind, then Democrats should negotiate. If it turns out he’s playing politics, they should respond accordingly.
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