Democrat Assembly members’ bills aim to limit liability for schools, small businesses

Democratic Assembly members are pushing a trio of bills to limit the liability of schools and small businesses that reopen during the coronavirus pandemic. But they're facing opposition from the Democrat-leaning Consumer Attorneys of California, who say the feared flood of COVID litigation has so far failed to materialize.

"We need to provide clarity and reduce uncertainty for school districts as they navigate the patchwork of state, federal and public health COVID-19 rules," Assemblyman Patrick O'Donnell, D-Long Beach, wrote in a news release when he introduced AB 1384, which would limit the liability of K-12 school districts.

O'Donnell noted that schools will be coming back soon, with most set to return in August. He is among the lawmakers who have pushed for in-person teaching.

Two other liability bills are AB 1035, which would shield small businesses with fewer than 25 employees, and AB 1759, which would protect colleges. AB 1035 was introduced by Assemblymen James Ramos, D-Highland, and Chad Mayes, I-Yucca Valley, a former Assembly Republican leader who is now an independent. AB 1759 was introduced by Assemblyman Rudy Salas Jr., D-Bakersfield.

Staff for O'Donnell, Ramos and Salas did not reply to emails seeking comment.

The consumer attorneys group had a different take in a series of opposition letters sent to bill authors on July 7 and 8. The letters were sent by the group's political director, Lea-Ann Tratten and Deputy Legislative Director Jacqueline Serna. Each letter contained versions of the same argument: Businesses and schools that follow state guidelines are protected by existing law and face liability only if they behave irresponsibly.

Reached on Tuesday, Tratten didn't mince words.

"These are corporate Democrats and they are definitely right out of Mitch McConnell's playbook," she said, in reference to the Republican Majority Leader of the U.S. Senate, who has called for liability protection for some likely defendants of COVID-related lawsuits.

Tratten went on to refer to the bills as "last-minute gut-and-amends." This was a reference to the process that allowed each measure to be put forward well after the February bill introduction deadline. Each bill was created in late June or early July by taking an unrelated measure and substituting out all of the language.

But each measure still faces unforgiving deadlines. Both legislative houses have been on recess for all or most of the month and are scheduled to return Monday.

All three bills sit in the Senate Judiciary Committee. The Senate website does not list any scheduled hearings for that committee, but according to multiple sources one is being put together for Aug. 6. This is the just one day before the deadline for bills to pass policy committees, meaning they would need to be quickly passed from the committee and full Senate, then acted on nearly as quickly in the Assembly.

AB 1035 has also caught the attention of AARP California. The group "dedicated to empowering Americans 50 and older" is particularly worried about how the bill could affect liability of nursing homes. Some homes have been particularly deadly vectors during the pandemic.

"Legal immunity is dangerous," the consumer attorneys group State Director Nancy McPherson wrote in a July 13 opposition letter to Senate Judiciary Chair Hannah-Beth Jackson, D-Santa Barbara. "Giving these facilities blanket immunity would mean that even those facilities that have not followed this guidance would be off the hook for any harm to residents caused by their actions."

It's also unclear if the bills would have their intended effect if passed as written. Only AB 1035 is currently drafted as an urgency measure, describing a bill that requires a two-thirds vote in each house but going into effect as soon as it's signed. Bills passed without an urgency clause won't go into effect until Jan. 1.