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What to Expect from the Lame Duck Session of Congress

What to Expect from the Lame Duck Session of Congress

Congress has returned to Washington, DC following Thanksgiving to commence the “lame duck” session of Congress. Once the Electoral College confirms the election of Joe Biden as the next president, President Trump will be a lame duck president until the Inauguration on January 20. Both Congress and the president retain all their powers during this lame duck period, and offer an opportunity for the outgoing Congress and President Trump to make final policy decisions. Here is what the lame duck Congress could do that has a direct effect on ILMA members and includes a call-to-action:

COVID-19 Relief

COVID liability protection for businesses, including ILMA members, that have stayed open throughout the coronavirus pandemic, has been a priority legislative issue on Capitol Hill for the Association. Now, as COVID cases climb across the country to the highest rates of infection and hospitalizations since the beginning of the pandemic, movement has begun on another round of bipartisan coronavirus relief ahead of the upcoming holidays that likely will include the needed liability shield and the revival of the PPP program that helped many ILMA members earlier this year.

There have been two competing COVID relief bills on the table while House Speaker Nancy Pelosi (D-CA) has been in months’ long negotiations with Treasury Secretary Steven Mnuchin: a $2.2 trillion measure passed by the House last May, and a $500 billion Senate Republican bill, both of which have been modified as negotiations continue. Some 83 percent of small business owners want extensions of PPP and other business financial relief, which both Democrat and Republican frameworks support.

Additionally, a $908 billion bill drafted by a bipartisan group of Senators was introduced on December 1, which included $300 per week jobless benefits, additional PPP loans, bailouts to airlines, and other assistance programs. However, the bipartisan measure would not authorize a fresh round of $1,200 stimulus checks. Both the framework proposed by Sen. McConnell and the bipartisan Senate bill provide COVID liability protections sought by ILMA and discussed below.  In recent days, Speaker Pelosi and Senate Minority Leader Charles Schumer (D-NY) upped the pressure for congressional action late on December 2 stating, “we believe the bipartisan framework introduced by Senators [on December 1] should be used as the basis for immediate bipartisan, bicameral negotiations.” President-elect Biden jumped in, supporting the bipartisan COVID-relief effort to break the logjam on Capitol Hill.

In addition to the PPP revival, it is significant that the liability shield for businesses, including ILMA members, is in the bipartisan bill. Until now, Speaker Pelosi and Sen. Schumer had not shown a willingness to consider the liability shield provision.

Business Liability Protection (We need your help!)

ILMA could use members’ help on the COVID liability shield measure. The provision, if enacted, would protect businesses that have continued to operate as “essential businesses” since the Spring coronavirus shutdowns while states enact their own liability measures. Numerous personal injury lawsuits alleging COVID infections have been filed, and a number of plaintiffs’ law firms have increased their advertising and activity over the pandemic, in some cases funded by PPP loans. Given the importance to ILMA members as “essential businesses,” and based on the revival of the COVID relief bill negotiations, the Association is asking members to contact their lawmakers to support the inclusion of the liability shield provision in any compromise COVID relief measure. Click here for help in making these needed contacts with your representatives on Capitol Hill.

A joint letter signed earlier this week by ILMA and other trade associations was sent to leadership in Congress, requesting the passage of liability shields for businesses acting in good faith in protecting workers and employees, regardless of whether a COVID relief advances. Measures, such as the “Safe for Work Act,” would provide grounds to remove a state law claim of personal injury due to COVID to federal court and would require plaintiffs to show “gross negligence.” Current versions of the legislation would apply to both employee and customer lawsuits and would make it easier for businesses to dispose of unfounded claims.

FFCRA / E-FMLA Extensions (Maybe)

Other COVID-related emergency measures that affect ILMA members and that may be considered in the lame duck session are the “Emergency Family and Medical Leave Act” (E-FMLA) and the “Family First Coronavirus Relief Act” (FFCRA), both of which expire on December 31. Both laws require paid family, medical, and sick leave for COVID-related reasons, and offer tax credits for employers that provided the required relief. While there has not been much open discussion about extending the laws, they did receive strong bipartisan support in March, and the record-setting levels of cases now and continuing into 2021 likely will get some consideration over the next few weeks on Capitol Hill. Some published statistics have shown a decrease of 400 coronavirus cases per day because of the E-FMLA and FFCRA provisions. Extension of E-FMLA and FFCRA is politically palatable for both sides of the aisle and could be included in a COVID relief bill.

Funding Bills

Congress’ temporary continuing resolution to fund the Federal government expires on December 11, meaning lawmakers must pass 12 spending bills, or combine them into an omnibus measure, to avoid another Government shutdown. This is a “must do” for Congress. A few disagreements remain, including funding for the southern border wall and veterans’ health organizations. At a minimum, Congress could “punt,” instead simply extending the current $1.4 trillion continuing resolution to after Mr. Biden becomes president. This approach has been followed by lawmakers during other changes of administration. However, with the two Senate run-off elections in Georgia on January 5, this could be the last, best chance for Republican-favored provisions, such as immigration-enforcement funding, before the White House changes to Democrat control.


In addition to the spending bills, Congress passes annually a National Defense Authorization Act that includes decision making on troop levels, new weapon systems, and military personnel policies. Passage of the $740.5 billion measure has been held up by President Trump’s veto threat over language requiring several military bases named after Confederate leaders to be renamed. The President now has added a last-minute demand that Twitter, Facebook and other social media
platforms lose their current immunity from lawsuits over their regulating speech on the Internet. The fight over what is known as “Section 230” complicates predictions that Congress was days away from finishing its 59th annual defense authorization.


The COVID relief bill that includes ensuring business liability protections is the top priority for ILMA in the lame duck session of Congress. Again, please help by contacting your Members of Congress on the liability shield provision.