Labor & Employment Law Daily Will the GOP COVID-19 immunity proposal survive?
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Tuesday, August 4, 2020

Will the GOP COVID-19 immunity proposal survive?

By Pamela Wolf, J.D.

Notably, the SAFE TO WORK Act immunity proposal would require that businesses comply with “mandatory standards and regulations” and not be grossly negligent to get protection, but OSHA has not issued any mandatory COVID-19 standards.

Public Citizen is applauding reports that the White House is willing to cut a deal with Democrats that would not include the Republican “HEALS Act” proposal (SAFE TO WORK Act) aimed at granting immunity from liability to corporations, hospitals, and schools, as suggested by two people who allegedly have knowledge of internal White House planning. One of the people told the Washington Post that the measure was “considered important but not absolutely essential.” Unlike Senate Republicans, the White House purportedly sees the immunity proposal as something they can “live without.”

The SAFE TO WORK Act (S. 4317), introduced by Senator John Cornyn (R-Texas) on July 27, would limit liability for COVID-19 exposure claims for a period of almost five years for frontline workers such as nurses, doctors, teachers, and apparently any businesses as long as they are following “applicable government standards and guidance” (defined as “mandatory standards and regulations specifically concerning the prevention or mitigation of the transmission of coronavirus” issued by federal, state, and local governments) and are not grossly negligent.

Mandatory standards or regulations means “the standards or regulations are themselves enforceable by the issuing government through criminal, civil, or administrative action.”

Preemption and procedure. Among other things, the law would require lawsuits to be filed in federal court and would preempt other federal, state, and local laws, except those that more strictly limit the liability of a defendant. There are requirements that plaintiffs plead each element with particularity and specify “all places and persons visited by the person on whose behalf the complaint was filed and all persons who visited the residence of the person on whose behalf the complaint was filed during the 14-day-period before the onset of the first symptoms allegedly caused by coronavirus.”

Many stakeholders have raised concerns about the lack of mandatory standards that would protect employees from COVID-19 risks of exposure, noting that OSHA has issued no mandatory COVID-specific guidance during the pandemic, relying instead only on its already-in-place respiratory protection standard and the “general duty clause” of the OSHA Act, which requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

As noted by Cornyn, the SAFE TO WORK Act would, among other things:

  • Ensure that employers are not liable under federal labor and employment laws for complying with coronavirus-related guidance, including stay-at-home orders;
  • Protect employers from liability for injuries arising from workplace coronavirus testing; and
  • Clarify that a business providing training, PPE, or other assistance to an independent contractor or a franchisee’s employee does not convert the independent contractor or franchisee’s employee into the employee of the person providing the training, PPE, or other assistance.

Safe harbor. Taking a closer look, under the SAFE TO WORK Act, no individual or entity engaged in businesses, services, activities, or accommodations would be liable in any coronavirus exposure action unless the plaintiff can prove by clear and convincing evidence that:

  • The individual or entity was not making reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance in effect at the time of the actual, alleged, feared, or potential for exposure to coronavirus;
  • The individual or entity engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; and
  • The actual exposure to coronavirus caused the personal injury of the plaintiff.

Conflicting standards. Where there are conflicting applicable government standards from different jurisdictions, the individual or entity would be considered to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance unless the plaintiff establishes by clear and convincing evidence that the individual or entity was not making reasonable efforts in light of all the circumstances to comply with any of the conflicting applicable government standards and guidance.

Policy presumption. Where an individual or entity maintained a written or published policy on the mitigation of transmission of coronavirus at the time of the actual, alleged, feared, or potential for exposure to coronavirus that complied with, or was more protective than the applicable government standards and guidance to which the individual or entity was subject, the individual or entity would be presumed to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance.

The plaintiff, however, would be able to rebut this presumption.

Notably, the absence of a written or published policy would not give rise to a presumption that the individual or entity did not make reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance.

Damages. Among other things, the SAFE TO WORK Act also includes significant limitations on damages in court actions and gives businesses the right to damages (including punitive damages, which are otherwise limited) where a demand letter is served for what turns out to be a meritless claim.

Opposition to immunity. On July 30, 141 organizations, including Public Citizen, sent a letter to congressional leadership reiterating their opposition to what has emerged as the SAFE TO WORK Act and urging the lawmakers to reject this and other immunity proposals. “Some essential businesses have already put employees back in the workforce without ensuring their safety,” the organizations noted. “As a result, infections have spread in and out of the workplace. In some cases, this has led to renewed shutdowns, slowing the pace of recovery. From protecting the food supply chain to preventing needless deaths in nursing homes, it is clear that companies responsible for the health and safety of others must have every incentive to act responsibly. The pandemic cannot be an excuse for failing to take reasonable steps to protect workers and the public.”

“Greatly compounding the problem are recent trends toward deregulation and lax regulatory enforcement of workplaces,” the organizations continued. “The federal Occupational Safety and Health Administration has substantially stepped back from its role to protect the health and safety of workers during this pandemic. Under these circumstances, the specter of unsafe workplaces is a significant concern. Without adequate protective equipment and other safety measures, workers will be deterred from coming back to work. Immunity would only exacerbate these problems.”

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