Arizona Senate Ends Legislative Session For Good

By Ben Giles, Mark Brodie
Howard Fischer, Capitol Media Services
Published: Tuesday, May 26, 2020 - 3:54pm
Updated: Wednesday, May 27, 2020 - 12:13pm

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GOP Sens. Heather Carter and Kate Brophy McGee
Howard Fischer/Capitol Media Services
Sens. Heather Carter (left) and Kate Brophy McGee discuss Senate action May 26, 2020, before voting with Democrats to shut down the regular legislative session for the year.

Arizona senators finally pulled the plug Tuesday on the legislative session, leaving unresolved the question of whether businesses should get special protection from COVID-19 lawsuits.

The surprise move came as three Republicans joined with all 13 Democrats to halt all further business and go home.

Democrats have objected all along to continued routine business by the Republican-controlled Legislature while they say crucial pandemic-related issues are left unresolved. Key among those is the question of aid to what may now be 600,000 Arizonans who have lost their jobs.

But that sentiment was shared by some across the political aisle.

"We have much bigger fish to fry ... in issues related to the COVID virus and economic recovery,'' said Sen. Kate Brophy McGee (R-Phoenix). "And that's what I'm focused on.''

Sen. Paul Boyer (R-Phoenix) said he is expecting Gov. Doug Ducey to call a special legislative session. More to the point, he said that will require lawmakers to focus on only those issues directly related to the virus and the economy rather than "picking winners and losers'' to decide whose pet bills — unrelated to the virus — get to become law.

The maneuver angered Sen. Eddie Farnsworth (R-Gilbert). He is one of the architects of the measure designed to provide additional protection to businesses from claims that their actions or inactions caused customers, employees and patrons to contract the virus.

That measure, approved earlier this month by the House, would have allowed COVID-19 lawsuits only if a business acted with gross negligence, essentially the reckless disregard for the consequences of the action on others. By contrast, other lawsuits for injury or death proceed under a simple negligence standard.

So, in the case of an automobile accident, someone who is injured need show only that the other party was negligent, such as speeding, not paying attention or ignoring traffic lights. There is no need to prove that the other driver was acting with reckless disregard for others in order to collect damages.

Farnsworth was not comforted by assurances that the issue of liability will be addressed in a yet-to-be-called special session.

"What we've done is we've left those businesses hanging at a time where we have a tremendous economic downturn,'' he said, citing the most recent statistics on first-time claims for unemployment insurance which now total 17 percent of the state workforce.

"That's crazy high,'' Farnsworth said. "So for us to abdicate our responsibilities and walk away from this job is, in my opinion, unconscionable.''

But Senate President Karen Fann (R-Prescott) said many believe the House-passed legislation was not quite ready to be enacted into law.

Senate President Karen Fann
Howard Fischer/Capitol Media Services
Arizona Senate President Karen Fann on May 8, 2020.

"Our chambers [of commerce] and some of our business members felt that there were possibilities there were a couple of holes in it that may not have solidified their protection,'' she said. Then there are issues of whether local governments also should be entitled to be shielded from such lawsuits.

Finally there is the question of whether the legislation should preclude employees from being able to sue if a company's practices result in illness and death.

"Good legislation, good policy means that you look out for unintended consequences and you make sure that it's fair and balanced for everybody,'' Fann said. But she sidestepped the question of whether employers who do not provide proper equipment should be subject to lawsuit.

"I am not going to conjecture anything,'' the senate president said. "But I will say I think all of us will be looking at legislation to make sure it strikes a good balance so there is a protection for employees as well as employers.''

Farnsworth dismisses that as unnecessary.

He said there already are general standards in place for what protections employers must provide to workers. Farnsworth said he sees no reason for any special for COVID-19 any more than there is a requirement to provide protections from the seasonal flu.

Rep. John Kavanagh (R-Fountain Hills) who pushed the bill  through the House, said the measure did contain some protections for workers.

"If an employer intentionally, knowingly, recklessly or with gross negligence didn't protect employees, they could be sued,'' he said. "We just got rid of negligence [as a standard] because it's such a low bar and everything is so uncertain with these COVID regulations.''

But for Farnsworth, the issue is simpler.

"If an employee isn't comfortable, then they can find a job with somebody who is going to make them feel comfortable,'' he said. "That's the market system.''

Liability to employees aside, the question for lawmakers is under what circumstances should a business get a shield against lawsuits.

There is an alternate way of dealing with the issue.

Rather than shielding businesses from lawsuit for their simple negligence, the alternative would be to provide protections when businesses follow certain protocols. For example, the Centers for Disease Control and Prevention has recommended wearing masks in certain situations.

Farnsworth said that's not practical.

"We have mixed signals right now with what's going on out there in the medical industry,'' he said.

"We have people who are saying you should wear masks, we have people who are saying you shouldn't,'' said Farnsworth who, like most Republicans on the Senate floor on Tuesday, was not wearing one himself. "The surgeon general has said you shouldn't wear masks because you play with them, you make them dirty and it actually is worse.''

Kavanagh also said such a test is unworkable. He said it could leave businesses liable when customers don't follow the protocols.

More significant, he said, is that simple mistakes could lead to lawsuits.

While standing in line for self-service checkout at a building supply store, Kavanagh said he noticed that the staff is not disinfecting the hand-held scanners that customers use to ring up their items.

"I mean, everyone's got a phone, everyone can take pictures,'' he said.

"People could take pictures of those not following the guidelines and start suing them,'' Kavanagh said. "It could backfire.''

It isn't just the liability language in the legislation that was raising questions.

The bill also would have stripped out the ability for police and prosecutors to charge those who violate a gubernatorial executive order issued during an emergency with a Class 1 misdemeanor. That carries a potential six-month jail term and up to a $2,500 fine.

In its place would have been a $100 civil fine — one that would be forgiven if the individual or business owner came into compliance before the court date.

The governor has yet to weigh in on whether he would sign such a measure.

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