Senate Republicans have released a proposed liability shield that would offer significant protections to businesses, schools, universities and churches for COVID-19 exposure claims.
Businesses would generally be protected from liability for actions taken in compliance with applicable public health guidance.
The measure would provide an exclusive federal cause of action for COVID-19 exposure lawsuits, preempting the numerous new liability state laws that have been enacted during the pandemic.

Senate Republicans have recently unveiled their proposed liability protection measures intended to be included with the next Congressional COVID-19 pandemic response bill. Republicans have long signaled that providing businesses a federal liability shield is a top legislative priority for future relief bills, and Senate Majority Leader Mitch McConnell’s office has now released the text of the SAFE TO WORK Act, a legislative measure that could provide key liability protections for an array of businesses and organizations for COVID-19-related lawsuits. While the measure will likely face partisan opposition to its enactment, if passed, the liability shield would preempt many of the state law measures currently in place, and provide uniform protections for not just businesses, but also nonprofits, state and local governments, schools, and other organizations currently facing unknown liability risks from the COVID-19 pandemic.

The Safeguarding America’s Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy Act, or the “SAFE TO WORK” Act addresses Congressional concerns that COVID-19-related lawsuits “risk diverting taxpayer money provided under the CARES Act and other coronavirus legislation from its intended purpose to the pockets of opportunistic trial lawyers.” The Act further states that Congress must “safeguard its investment of taxpayer dollars under the CARES Act and other coronavirus legislation [to] ensure that those funds are used to help businesses and workers survive and recover from the economic crisis, and to help health care facilities defeat the virus.”

To this end, the SAFE TO WORK Act would provide businesses, schools, colleges, churches charities and an array of other institutions immunity from personal injury lawsuits, and from certain federal enforcement actions for COVID-19-related exposures, so long as reopening steps are taken in line with applicable health guidance. This safe harbor, retroactive to December 2019 and in effect for five years, would be provided so long as reasonable efforts are taken to comply with applicable government standards and guidance in effect at the time, and that the individual or entity did not engage in gross negligence or willful misconduct in responding to the COVID-19 pandemic. Under this liability shield, the Act would provide an exclusive federal cause of action for COVID-19 exposure lawsuits and preempt any less strict state or tribal laws in place. It would not, however, preempt stricter limits on damages or liabilities for personal injury provided by state laws.

Additionally, the proposed measure would also provide new liability protections for medical workers and health care facilities from medical malpractice cases. Liability and malpractice protections had previously been provided for volunteer health care workers under the CARES Act, but the new measure would both greatly expand these protections to a wide swath of health care professionals, and would provide an exclusive federal cause of action for medical liability claims. Under this provision, no medical liability action will be able to succeed unless plaintiffs are able to prove by clear and convincing evidence that the health care provider committed gross negligence or willful misconduct and that any harm, damage, breach or tort was directly caused by such action. The measure would enact a one-year statute of limitations for any COVID-19-related medical liability lawsuits.

For both measures, the SAFE TO WORK Act would institute specific required procedures for suits in U.S. district courts designed to limit the number of COVID-19 exposure claims litigated. The Act would adopt a heightened pleading standard, requiring plaintiffs to plead with particularity each element of the claim, provide all places visited by the plaintiff during the 14-day-period prior to exposure, and address each alleged act or omission constituting gross negligence or willful misconduct. The procedures would also require clear-and-convincing evidence burdens of proof, and would limit available damages to the economic losses incurred as the result of the injury, except in instances of willful misconduct.

Separately, the SAFE TO WORK Act would also reform certain covered labor laws in response to the COVID-19 pandemic. The measure would provide liability protections for any action or personal injury claim arising from COVID-19 testing at the workplace, and exempt businesses following applicable health guidance from certain agency investigations under federal labor and employment laws. The measure would also provide new Worker Adjustment and Retraining Notification (WARN) Act flexibility, ensuring that businesses are not found liable for failing to provide the required 60-day notice before plant closures and mass layoffs as these notices have not been widely possible for businesses responding to outbreaks of COVID-19.

This proposed federal liability shield would provide significant and uniform new protections to businesses. To date, states have been far more active in legislating COVID-19-related liability protections for businesses and medical professionals. These state measures have offered assurances to businesses, but have also led to a piecemeal framework with inconsistent state laws. Notably, the federal proposal follows steps that some of these states have already enacted. The Senate Republican proposal follows a model already adopted in Oklahoma and Wyoming by tying liability protections for businesses and medical workers to compliance with applicable public health guidelines. While Congressional leaders debate the SAFE TO WORK Act, states will likely continue to adopt new and varying COVID-19 response measures. Businesses and organizations operating during the pandemic should remain familiar with both federal and state-level liability protections that may be available.

For more information, please reach out to your regular Pillsbury contact or the authors of this client alert.

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