The SAFE TO WORK Act would bar most lawsuits seeking damages for COVID-19 infection, diagnosis, or treatment.
The SAFE TO WORK Act (S. 4317) was first introduced as standalone legislation on July 20. The text of this proposed COVID-19 liability shield is included within the “skinny” coronavirus relief bill that recently failed a key vote in the Senate.
As detailed in the attached, the SAFE TO WORK Act would afford U.S. businesses, nonprofits and local governments protections against liability for COVID-19 infections markedly stronger than those available under the immunity statutes enacted by the States.
Under the proposed federal law, a plaintiff infected with COVID-19 would be required to prove through “clear and convincing” evidence:
· The defendant failed to make reasonable efforts to comply with applicable government standards or guidance to mitigate the transmission of COVID-19;
· The defendant acted with gross negligence or willful misconduct; and
· That gross negligence or willful misconduct caused the plaintiff to contract COVID-19.
High Evidentiary Standard
State COVID-19 immunity statutes keep the usual “preponderance of the evidence” burden of proof (often described as the “more likely than not” standard).
While not as strict as the “beyond reasonable doubt” standard used in criminal cases, the federal proposal’s heightened “clear and convincing” standard requires the plaintiff to prove his or her claim to a “high probability”.
This heightened standard would be especially challenging for plaintiffs because the federal proposal places the burden on the plaintiff to prove that the defendant’s attempt to comply with government standards or guidance was unreasonable. Under the state COVID-19 immunity statutes, the defendant has the burden to prove it acted in substantial or good faith compliance with governmental standards or guidelines before it can trigger the liability shield.
Significant Limitations on Awards
State COVID-19 immunity statutes do not put any special limits on the amount of damages a plaintiff may recover.
The federal proposal would impose significant limitations on the amount a plaintiff could recover:
· The plaintiff’s recovery is reduced by the percentage of his or her fault in contracting COVID-19;
· A plaintiff can only recover actual out of pocket expenses and lost income; and
· Damages for pain and suffering are only available if the plaintiff proves the defendant engaged in willful misconduct.
Strict Rules on Pleadings
Under the federal proposal, the plaintiff’s complaint must be filed under oath (i.e., subject to penalties for perjury) and include specific details of:
· All places and persons the plaintiff visited during the 14-days before the onset of symptoms;
· All persons who visited the plaintiff’s residence during that 14-day period;
· The factual basis for the belief the defendant was a cause of the plaintiff’s COVID-19 infection; and
· The factual basis for the belief every other person or place visited was not a cause of the plaintiff’s COVID-19 infection.
Under the federal proposal, any attorney or other person transmitting a demand to settle a COVID-19 claim may be sued if the underlying claim is meritless. The recipient of a meritless settlement demand is entitled to recover:
· Compensatory damages including costs to responding to the settlement demand;
· Punitive damages if making the settlement demand was reckless; and
· Attorney’s fees and costs.
Alternatively, if the U.S. Justice Department believes there is a pattern or practice of making meritless settlement demands, it may file an action against those responsible seeking up to $50,000 per meritless demand. The amounts recovered by the Justice Department would be distributed to the recipients of those demands.