The bill sure as hell isn’t perfect. On that everyone seemed to agree.
Where opinions differed was in whether the passage of Senate Bill 4 on Wednesday during the final day of the 32nd Special Session was inevitable or necessary to protect an economy whose lifeblood has been devastated by the coronavirus pandemic.
SB4 provides covid-related liability protections for most businesses, nonprofits and government entities who can prove they followed the prevailing health standards detailed in federal, municipal or industry guidelines. Hospitals and other healthcare facilities, as well as K-12 public schools, are exempted from coverage.
Additionally, the bill codifies worker safety protections specific to the hospitality industry.
The bill drew heavy lobbying before and during the six-day special session, with the general counsel for the governor’s office admitting to senators during one hearing that the bill was “a negotiated deal” made between “some of the most important members of the economy.”
Democratic Gov. Steve Sisolak’s office framed the bill as a way to protect businesses large and small from frivolous lawsuits while still allowing the hammer to come down against any “bad actors” who skirt on safety provisions and put employees or the public in danger.
Various trial lawyers and legal groups have pushed back against that characterization, arguing that giving businesses liability protections beyond those already afforded to them is incentivizing cutting corners and puts workers at danger.
The governor’s office also suggested SB4 would act as a bat signal to the world that Las Vegas’ signature industry is taking health and safety seriously — so please come back and visit sometime soon.
The bill passed the Assembly 31-10 and the Senate 16-5. Neither vote fell strictly on party lines, with five Democrats across both houses voting against their majority party and several Republicans voting with the majority party.
Even those who supported the bill lacked enthusiasm.
Assemblyman William McCurdy, a Democrat, called the decision to vote yes as one of the hardest he’s ever had to make as an elected official: “I cannot help but think we have other workers who are more than deserving of these same protections.”
He added, “I’m going to continue to fight for workers. But I feel this is what we have to do at this moment to preserve our economy.”
Assemblywoman Dina Neal, a Democrat, made a similar plea directly to her constituents before her vote in support of the bill.
“I am always there for you. Never believe I have shifted my values. I am going to vote yes to save some, even though I know I can’t say save all, and figure out how to get the state reopened.”
Others concerned about rank-and-file workers came to a wholly different conclusion.
“I cannot in good conscience vote for blanket liability for businesses without codifying additional protections for all workers,” said Assemblywoman Selena Torres, a Democrat.
“I cannot support a bill that doesn’t equally support all workers and also carves out a specific industry,” said Assemblyman Richard Carrillo, a Democrat. “Even in extraordinary times, we need to protect everyone to keep people safe while still encouraging businesses to open safely.”
Objections from Democrats gravitated toward concerns about worker protections and whether existing protections, like OSHA enforcement and workers compensation, provide enough recourse and support for workers.
During the Assembly hearing, Torres asked the governor’s staff what would happen if a casino worker contracted covid-19. A staffer detailed the provisions outlined within SB4’s worker protections section, which includes being provided free testing and paid-time off while they wait for test results.
Then, Torres asked a follow-up question: What would happen if a grocery store employee contracted covid?
The governor’s office staff said they couldn’t respond because that would be a matter of the company’s protocols.
Meanwhile, objections from Republicans trended toward concerns about whether hospitals would cut services, not transfer patients, not take on medical students or residents, or restrict visitor access for patients due to liability concerns. Similarly, they expressed concerns that K-12 schools would delay resuming physical classes due to liability concerns.
Assemblywoman Jill Tolles, a Republican, was one of several lawmakers who voiced those concerns. She still voted in favor of the bill.
“We cannot afford to shut down again,” she said. “We cannot take another round of deep cuts. We cannot add more workers to an already overburdened unemployment insurance system.”
State Sen. Joe Hardy and Assemblywoman Robin Titus — the two doctors in the Legislature — also harshly criticized the decision to exclude hospitals. Both Republicans voted against the bill.
Assemblyman Glen Leavitt, a Republican, fell to a position of “reluctant support,” even after a frustrating exchange in which he pressed for details on what groups were involved in the crafting of SB4.
“Many entities,” was the only answer he received from Brin Gibson, general counsel for the governor’s office. “I don’t have a list.”
The Nevada Hospital Association contends it was not invited into any part of the discussion about business liability or worker protections. Washoe County Health District, an agency that will have to implement additional inspections on hotel properties as a result of the bill, testified they hadn’t been consulted on the bill.
State Sen. Ben Kieckhefer, a Republican, said he could find “a couple easy ways” to oppose the bill but that he was supporting it because he wanted to get Nevadans back to work.
“This would provide confidence for these businesses to reopen,” he said.
Kieckhefer also acknowledged the behind-the-scenes dealmaking that no doubt happened between the state’s largest industry and one of its largest employee groups: “I don’t know if it’s a good deal for either side. They know their business better than I do.”
The Nevada Resorts Association, MGM Resorts and the Culinary Union formally supported the bill during public testimony late Wednesday night. The Culinary Union had named their proposal, much of which made it into the final version, the “Adolfo Fernandez bill” after a Caesars Palace employee who died after contracting covid-19.
Clark County Education Association originally opposed the bill because it provided liability to schools. After an amendment passed excluding schools from the liability, the organization tweeted that it could support the bill. But no representatives vocalized that during the hearing. Meanwhile, Nevada State Education Association expressed satisfaction over the decision to exclude schools but remained officially opposed over concerns about worker safety.
Gov. Sisolak is expected to sign the bill.