On July 27, 2020, Senate Republicans introduced the HEALS Act,[i] its response to the Democrat-backed stimulus bill, the HEROES Act.[ii] Although the HEALS Act is currently on life support in light of the stalemate in negotiations over the competing bills, employers should nonetheless take notice of one lesser publicized piece of the Senate’s proposed stimulus package: the SAFE TO WORK Act (the “Act”).[iii] The Act would create a liability shield (with retroactive effect) for employers and others “to discourage insubstantial lawsuits relating to COVID-19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief.” [iv]
The Act would provide broad protection to businesses, healthcare providers, schools and universities, and religious, philanthropic, and other nonprofit institutions from liability arising from claims of personal injury due to actual or potential COVID-19 exposure. In addition, the Act would limit or bar coronavirus-related claims against employers under several specific federal employment laws.[v] Although the Act would not bar all coronavirus-related claims, the risk of monetary penalties for pursuing claims later deemed meritless and the stringent procedural requirements to pursue a claim could discourage all but the most intrepid aggrieved plaintiff from suing.
The Act’s Senate sponsors and other proponents argue that the Act is necessary to limit or eliminate the risk of expensive litigation that they assert would deter businesses and other entities from reopening, jeopardize the nation’s recovery from the pandemic, and put at risk the investment of taxpayer dollars under the CARES Act. These proponents further argue that healthcare workers and facilities need and deserve a liability shield to allow them to defeat the virus. Opponents, in contrast, including leading House Democrats, claim the Act would eliminate an important incentive for individuals and entities to comply with government standards and guidelines intended to protect workers and the public. Opponents contend the Act would leave vulnerable individuals who are exposed to the coronavirus without recourse if they suffer harm because of lax compliance.
Over the weekend, President Trump issued executive orders intended to supplant stimulus legislation. Those orders addressed some, but not all, of the issues addressed by the HEALS Act. Liability shields for employers and other businesses and individuals were not among the issues addressed, and it is now unclear how much effort the Senate will devote to resurrecting the HEALS Act and whether the House and Senate could reach a compromise if negotiations resume. The current state of uncertainty complicates the calculus for employers. Many employers that are trying their best to keep their businesses safe still worry about potential liability for failing to control a virus that the entire world has been unable to control—and have watched with concern as coronavirus-related lawsuits against employers have begun to sprout like dandelions. Employers may welcome the relief from potential liability the Act would provide, but they should understand that the Act would not serve as a “Get Out of Jail Free” card. Under the Act, employers would remain liable to employees who can prove a coronavirus exposure due to an employer’s gross negligence or willful misconduct, and employers could forfeit the benefit of a safe harbor if they do not make reasonable efforts to comply with applicable government standards and guidance.
Whether the parties can reach a compromise to enact a stimulus package remains to be seen. In the meantime, to help employers better understand the Act, we analyze it in detail below, including:
The Act would govern “coronavirus exposure actions.” “Coronavirus exposure actions” include any civil action: (i) brought by a person who suffered or is at risk of suffering personal injury (“plaintiff”); (ii) against an individual or entity engaged in businesses, services, activities, or accommodations (“defendant”); (iii) alleging that an actual, alleged, feared, or potential for exposure to coronavirus caused a personal injury or risk of personal injury that occurred in the course of the businesses, services, activities, or accommodations of the individual or entity.
The Act would apply retroactively to any exposure or risk of exposure that occurred on or after December 1, 2019 and would continue to protect potential defendants for up to five years, until October 1, 2024.
The Act would exclude from the definition of “coronavirus exposure action”: (i) any criminal, civil, or administrative enforcement action brought by the federal government or any state, local, or tribal government; and (ii) a claim alleging intentional discrimination on the basis of race, color, national origin, religion, sex (including pregnancy), disability, genetic information, or age.
The Act would create a new federal cause of action for coronavirus exposure that would preempt and supersede all other laws related to recovery for personal injuries caused by actual, alleged, feared, or potential for exposure to coronavirus. The only exceptions to this preemption and supersedure would be: (i) laws that afford defendants greater protection from liability than the Act; (ii) workers’ compensation laws; (iii) government enforcement actions; (iv) discrimination claims; and (v) a seaman’s right to claim maintenance and cure benefits. Plaintiffs could sue in federal or state court, but the defendant could remove any state court action to federal court. Any grant or denial of remand to the state court would be subject to an immediate appeal.
To establish liability, a plaintiff would be required to establish by clear and convincing evidence all of the following:
(1) the defendant was not making “reasonable efforts” in light of all of the circumstances to comply with applicable government standards and guidance in effect at the time of the coronavirus exposure;
(2) the defendant engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; and
(3) the actual exposure to coronavirus caused the personal injury of the plaintiff.
If applicable government standards and guidance issued by different government agencies conflict with each other, a defendant (without making any kind of showing of its own) would be considered to have made reasonable efforts to comply unless the plaintiff proves by clear and convincing evidence that the defendant was not making such reasonable efforts.
If a defendant maintains a written or published policy on mitigating transmission of coronavirus that is more protective than applicable government standards and guidelines, the law would presume that the defendant made reasonable efforts to comply with those standards and guidance. The plaintiff could rebut this presumption by establishing that the defendant was not complying with its own policies at the time of the alleged or actual exposure. The absence of a written or published policy would not give rise to a presumption of lack of reasonable efforts to comply with applicable government standards and guidance. A plaintiff could also not rely on changes to policies, practices, or procedures after an injury occurs as evidence of liability, and defendants would not be liable for actions of third parties except for the defendants’ agents or third parties that defendants had a legal obligation to control.
A plaintiff who prevails on a claim under the Act could recover only economic compensatory damages unless the trier of fact (the jury or, if none, the judge) determined that the defendant engaged in willful misconduct. In that case, the plaintiff could recover noneconomic damages and punitive damages, but only up to the amount of compensatory damages recovered. In cases involving multiple alleged wrongdoers, a losing defendant would be liable only for its proportionate share of the liability, unless the defendant specifically intended to injure the plaintiff or knowingly committed fraud.
To get past the gate, a plaintiff pursuing a claim under the Act would have to provide—under penalty of perjury and without benefit of any discovery—a significant amount of factual detail in and with his or her complaint. Specifically, the complaint must include:
(1) the facts establishing each element of the plaintiff’s claim;
(2) each alleged act or omission constituting gross negligence or willful misconduct that resulted in the alleged personal injury;
(3) a detailed list of all places and persons visited by the plaintiff and all persons who visited the residence of the plaintiff during the 14 days before the onset of the first coronavirus symptoms;
(4) for each named defendant, the factual basis for the belief that the defendant was the cause of the alleged personal injury; and
(5) for each visited person or place not named as a defendant, the factual basis for the belief that the person or place was not the cause of the alleged personal injury.
In addition, the Act would obligate the plaintiff to file with the complaint:
(1) a statement describing the nature and amount of each element of claimed damages and the factual basis for the damages calculations;
(2) where the plaintiff alleges gross negligence or willful misconduct, a statement detailing the facts giving rise to a “strong inference” that the defendant acted with the requisite state of mind;
(3) an affidavit by a non-treating physician or other qualified medical expert stating his or her belief that the plaintiff suffered the alleged personal injury; and
(4) certified medical records to back up the medical expert’s affidavit.
The Act would limit discovery in coronavirus exposure actions, require that potential class members affirmatively opt into a potential class action, and limit multidistrict litigation.
The Act also contains financial deterrents to pursuing a remedy for an alleged coronavirus exposure. If a plaintiff or someone acting on his or her behalf sends a letter to a defendant demanding money in exchange for a release, the defendant could sue the plaintiff and recover compensatory and possibly punitive damages if the demand letter is later deemed meritless. A defendant who sues and wins on such a claim could recover attorneys’ fees from the plaintiff. The attorney general could also sue the plaintiff and recover a penalty of up to $50,000.
The Act would additionally shield employers from government enforcement actions and liability to plaintiff employees in coronavirus exposure actions arising under specified “covered federal employment laws.” To benefit from this liability shield, an employer would need to show that it: (i) relied on and generally followed applicable standards and guidance; (ii) knew its obligation under the relevant standard or guidance; and (iii) tried to satisfy the obligation to comply by exploring options such as the use of virtual training or remote communication strategies, implementing interim alternative protections or procedures, or following applicable government agency guidance regarding any exemptions from the obligation.
The “covered federal employment laws” under the Act are the Occupational Safety and Health Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the WARN Act, Title VII of the Civil Rights Act, Title II (applicable to employers) of the Genetic Information Nondiscrimination Act, and Title I (applicable to employers) of the Americans with Disabilities Act.
During any public health emergency period, places of public accommodation would not be liable under any public accommodation law for any action taken regarding coronavirus if the place of public accommodation determined that it could not reduce or eliminate the significant risk of substantial harm to public health or the health of employees by reasonably modifying policies, practices, or procedures or by providing an auxiliary aid or service.[vi] The Act would also shield from liability a place of public accommodation if a person protected by a public accommodation law rejects an offered reasonable modification or auxiliary aid or service. The Act would also not require any place of public accommodation to waive any coronavirus-related requirements or recommendations issued by any government agency to offer a reasonable modification or auxiliary aids and services.
The Act would shield employers that retain third parties to conduct workplace coronavirus testing from liability for any personal injuries arising from the testing. This shield would not apply where the employer’s gross negligence or willful misconduct caused the injuries.
The mere provision by a company of: (1) coronavirus-related policies, procedures, or training; (2) personal protective equipment or training for the use of the equipment; (3) cleaning or disinfecting services or the means to clean or disinfect; (4) workplace testing for coronavirus; or (5) temporary assistance due to coronavirus (including financial assistance or other health and safety benefits) would not create a joint employment relationship with another company’s employees or an employment relationship with an independent contractor.
Under the Act, employers would not have to provide notice to affected employees, unions, or government agencies under the federal WARN Act for mass layoffs and other “employment loss” (as defined in the WARN Act) resulting from the COVID-19 national emergency declared by the president under the National Emergencies Act regarding the Coronavirus Disease 2019. This provision would apply retroactively to employment losses occurring from January 1, 2020 until 90 days after the last date of the COVID-19 national emergency.
Employers are understandably nervous about potential liability to employees who may contract COVID-19. This potential liability looms large over considerations of when and how to operate—and where to resume onsite operations. With infection rates surging in many parts of the country, effective contact tracing is not feasible, and pinpointing where an employee became infected may be impossible in most cases. Even vigilant employers may find it difficult to comply 100 percent of the time with the evolving and sometimes conflicting rules and guidance from the alphabet soup of government agencies. Employers worry that they cannot prevent every workplace infection, especially given the apparent ease of asymptomatic transmission. In many states, worker’s compensation insurance provides the exclusive remedy for workplace injuries, but creative plaintiffs’ lawyers have wasted no time finding ways to plead around these exclusivity provisions.
If enacted, the Act should give employers some comfort that if they make reasonable efforts to comply with applicable government regulations and guidance, their liability to employees who contract coronavirus will largely be limited to the benefits provided through worker’s compensation insurance. Regardless of whether the Act becomes law, it will remain important for employers to stay current on the latest regulations and guidance from the CDC, OSHA, and state and local public health agencies, develop and familiarize employees with a prudent return-to-work plan, and designate a person or team to follow through on the plan and enforce it.
[i] The HEALS Act is not itself a bill but rather is comprised of eight separate bills.
[ii] Health and Economic Recovery Omnibus Emergency Solutions Act (“HEROES Act”), H.R. 6800, 116th Cong. (2020).
[iii] Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy Act (“SAFE TO WORK ACT”), S.4317, 116th Cong. (2020).
[v] The Act also includes provisions specific to healthcare providers and products liability which are beyond the scope of this article.
[vi] The Act defines a “public health emergency period” as “a period designated a public health emergency period by a Federal, State, or local government authority.” The Senate included this provision regarding public accommodations in the employment and labor law section of the Act, although the statutes addressed by this provision—Title III of the ADA and Title II of the Civil Rights Act of 1964—create obligations by places of public accommodation to the public, not obligations of employers to employees.