Bill Would Help Protect Employers from COVID-19-Related Liabilities

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A bill recently introduced in Congress would discourage insubstantial lawsuits relating to COVID-19. The pandemic has already caused its fair share of damage, and employers have been dealing with additional challenges in the form of lawsuits under federal laws such as OSHA and related state plans, the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the Worker Adjustment and Retraining Notification Act (WARN), Title VII of the Civil Rights Act (Title VII), Title II of the Genetic Information Nondiscrimination Act (GINA), and Title I of the Americans with Disabilities Act (ADA). These laws generally provide protections and rights for employees, but employers have had distractions with many unexpected considerations. Given this, and the desire to stem the negative economic impact of the virus, a bill (S 4317) was introduced in Congress that would provide a safe harbor for employers under these laws. The bill is known as “Safeguarding America’s Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy Act” or the “SAFE TO WORK Act."

Generally, employers would not be subject to any enforcement proceeding or liability under any provision of these federal employment laws if the employer:
• Was relying on and generally following applicable government standards and guidance;
• Knew of the obligation under the relevant provision; and
• Attempted to satisfy any such obligation by:
-- Exploring options to comply with such obligations and with the applicable government standards and guidance (such as through the use of virtual training or remote communication strategies);
-- Implementing interim alternative protections or procedures; or
-- Following guidance issued by the relevant agency with jurisdiction with respect to any exemptions from such obligation.

Employers conducting testing for coronavirus at the workplace would also not be liable for any action or personal injury directly resulting from such testing, except for those personal injuries caused by the gross negligence or intentional misconduct of the employer or other person.

Interestingly, neither the FMLA nor the FFCRA are included in the bill. The FFCRA was enacted solely as a result of the pandemic, and related claims have been mounting.

Employees could prevail in a case if they could prove by clear and convincing evidence that:
• The employer 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 employer 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 employee.

In any case, should this bill become law, employers would have even more reason to keep an eye on the government guidance regarding the virus and keeping employees safe, such as those from the CDC.
The bill was introduced July 27 and was referred to the Committee on the Judiciary. It has a long way to go before it can become law. While some bills can fast track to enactment, the fate of this one is yet to be seen.

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