As Congress grapples with the next tranche of COVID-19 legislation, a key issue that remains at the forefront of the debate is whether and to what extent Congress will resolve the remaining COVID-19 exposure lawsuits against businesses and nonprofits limit will be operational during the pandemic.

The leading bill is titled "Protecting America's Frontline Workers to Offer Job Opportunities Required for the Economy Act to Start" or "SAFE TO WORK Act" (p. 4317). In the case of a law, the bill would:

  • Limit liability for COVID-19 claims for virtually any private company in the United States unless the plaintiff can demonstrate that the company (1) “has not made reasonable efforts, given the circumstances, to comply with applicable government standards and guidelines in effect at the time “of the alleged exposure to COVID-19; (2) caused an actual exposure to COVID-19 through gross negligence or intent; and (3) actual exposure to COVID-19 resulted in plaintiff suffering personal injury.
  • For example, suppose a company has made “reasonable efforts. . . to meet ”if (1) the company has met one of the conflicting standards in the face of conflicting guidance offered by two relevant government agencies; or (2) the company maintained a written policy to mitigate transmission or COVID-19 that was in accordance with applicable government standards and guidelines.
  • Exposure coverage claims allegedly occurring between December 1, 2019 and October 1, 2024.
  • Eliminate the preponderance of the standard of evidence (also referred to as "more likely than not") for COVID-19 exposure claims and replace it with the higher standard of "clear and convincing evidence".
  • Eliminate the joint and several liability of multiple defendants and, in most cases, demand fair liability.
  • Limit the availability and amount of damages and punitive damages claims for COVID-19 exposure claimants.
  • Prevent and replace federal, state, or tribal law violations relating to the recovery of personal harm caused by actual, alleged, fear, or potential exposure to COVID-19, unless those laws impose stricter standards for potential claimants.
  • Give federal courts original jurisdiction over all COVID-19 lawsuits and limit the scope of detection in federal courts.
  • In particular, ask the plaintiffs of COVID-19 to assert their legal complaints.
  • Require each COVID-19 exposure complainant to identify all places and people visited by the plaintiff and anyone who has visited the plaintiff's place of residence during the 14-day period prior to the onset of symptoms allegedly caused by COVID-19. and the reasons why the plaintiff believes the other identified individuals did not expose the plaintiff to COVID-19
  • Eliminate federal COVID-19 class action lawsuits and seek collective (“opt-in”) action on multiple plaintiffs.
  • Limit medical liability for COVID-19-related services provided by a healthcare provider.
  • Make it easier for companies to rely on “direct threat” defense in disputes in public accommodation.

There is no doubt that if the SAFE TO WORK Act were incorporated into law, it would be the most ambitious tort reform piece in Congress in decades, if not all time. While it is unclear what provisions of the SAFE TO WORK Act will ultimately be incorporated into the law, the draft law provides some insight into potential tort reform legislation related to future pandemics. The SAFE TO WORK Act is a comprehensive bill designed to limit all three aspects of a lawsuit: process, merit, and facilities.

As you know, things change quickly and there is a lack of clear authority or clear rules for implementation. This article is not intended as a clear, uniform guide, but represents our interpretation of the current and general state of affairs. This article does not address the potential impact of the numerous other local, state, and state orders issued in response to the COVID 19 pandemic, including, without limitation, the potential liability in the event of an employee becoming ill, Pay for family vacation or illness requirements and other issues.

Sheppard Mullin endeavors to provide employers with updated information on COVID-19 and its effects on the workplace. Learn about the legal implications of Sheppard Mullin's Coronavirus Insights portal, which summarizes the company's various COVID-19 blog posts.

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