By Brian Finch, Zachary Kessler and Aimee Ghosh

Law360 (August 17, 2020, 5:23 PM EDT )

Brian Finch

Zachary Kessler

Aimee Ghosh

Senate Republicans recently unveiled their long-awaited pandemic liability protection bill, the Safeguarding America's Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy, or Safe to Work, Act.

Intended to be included as part of the next congressional COVID-19 pandemic response bill, the Safe to Work Act represents Republican efforts to create a federal liability shield that will enable entities of all types — ranging from businesses to local school districts — to reopen with a greatly reduced risk of facing possibly ruinous litigation that questions their every pandemic mitigation decision.

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 Safe to Work Act states that it is intended to address 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.

Outside the legislative preamble language regarding taxpayer funds, individual members of Congress have expressed support for liability protections as a way to prevent a flood of coronavirus lawsuits from derailing the fragile process of returning the economy to its prepandemic vigor.

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 effective for five years, would be provided to entities and individuals so long as: (1) reasonable efforts are taken to comply with applicable government standards and guidance in effect at the time; (2) the individual or entity did not engage in gross negligence or willful misconduct in responding to the COVID-19 pandemic; and (3) the supposed injury suffered by the plaintiff was actually caused by exposure to coronavirus.

Under this liability shield, the act would provide an exclusive federal cause of action for COVID-19 exposure lawsuits. In a nod to the bill's intent to broadly limit pandemic lawsuits, the Safe to Work Act 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, and several states — including New York, New Jersey and Michigan — also issued orders limiting medical malpractice lawsuits arising out of the pandemic.

The Safe to Work dramatically expands on and harmonizes those measures, by expanding medical malpractice litigation protections to a wide swath of health care professionals. The act 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 claimed 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 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.

As currently drafted, the Safe to Work Act offers an interesting mix of protections related to existing liability management statutes. For instance, the act has some threads quite similar to the Public Readiness and Emergency Preparedness, or PREP, Act.

That law, which dates back to the mid-2000s, is also intended to shield the health care sector — including specifically medical device and pharmaceutical manufacturers — from liability when there is a public health emergency, including pandemics. The PREP Act goes further than the Safe to Work Act, in that it offers almost full immunity to manufacturers of drugs, biologics and medical devices as well the professionals who use them, while the Safe to Work Act still allows for damages, but severely limits when damages can be awarded.

Such differences make sense when one considers that the PREP Act is primarily intended to allow companies to proceed with the research, development and sale of medical products intended limit or eliminate the pandemic itself, while the Safe to Work Act is aimed more at providing assurances to businesses that they won't be as vulnerable to predatory lawsuits if they reasonably try to follow appropriate government health recommendations.

One other law the Safe to Work Act resembles is the similarly named Support Anti-Terrorism by Fostering Effective Technologies, or SAFETY, Act. The SAFETY Act is designed to encourage the creation and use of effective anti-terrorism tools like X-ray machines, security guards or well-developed security response plans.

Unlike the Safe to Work Act, the SAFETY Act applies at the discretion of the secretary of homeland security — and even then, the SAFETY Act's protections can only be used by companies that have proactively applied for its protections as well as their customers. The Safe to Work Act, in contrast, will apply to any business or entity, regardless of whether it proactively had its anti-pandemic operations reviewed by the federal government.

As much as the Safe to Work Act has been carefully crafted to fill the gaps left by the PREP and SAFETY Acts, there are still some curious limits to its reach. First, as currently written, the Safe to Work Act only applies to the COVID-19 pandemic. New legislation would need to be written in the event a new, unrelated, pandemic emerges.

Second, the Safe to Work Act's protections mainly apply when someone reasonably tries to follow "applicable government standards and guidance." That's a curious limitation, as it disincentivizes the use of possibly more innovative anti-pandemic measures that have been privately developed.

Regardless, the Safe to Work Act 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 liability protections that may be available.

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Brian Finch is a partner, Zachary Kessler is an associate and Aimee Ghosh is counsel at Pillsbury Winthrop Shaw Pittman LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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