SAFE TO WORK ACT: The HEALS Act’s Tort Immunity Provision

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SAFE TO WORK ACT: The HEALS Act’s Tort Immunity Provision

9/9/20

In the slew of hotly debated topics for provisions to be included within upcoming COVID-19 relief legislation, chambers of commerce and Republicans in Congress have consistently pushed for liability protections for businesses, health care providers, and schools from plaintiffs seeking damages related to COVID-19 exposure. Generally, such provisions would shield businesses and organizations that at least made reasonable efforts to protect against COVID-19 exposure, and that were not grossly negligent or willful in their misconduct. On the other hand, Democrats and unions are concerned that these protections will infringe upon employees’ due process rights and will severely limit situations in which they can recover for exposure to the virus.

The recently proposed Safe to Work Act, one piece of the Republican-backed Health, Economic Assistance, Liability Protection and Schools Act (the “HEALS” Act), seeks to curb liability for coronavirus exposure for businesses and individuals. Safe to Work Act, S.R. 4317, 116^th Congress (2020). The Act seeks to curb suits for what it terms “coronavirus exposure actions.” This term is defined as a civil action brought by a person who has suffered personal injury or is at risk of suffering personal injury alleging actual, alleged, feared, or potential exposure to coronavirus occurring in the course of business, service, activity, or accommodation provided by an individual or entity after December 1, 2019 and before October 1, 2024 or such other date set by the Secretary of Health and Human Services under the Public Readiness and Emergency Preparedness Act (“PREP Act”).

In particular, Section 122 of the Safe to Work Act provides that individuals or businesses cannot be liable for alleged exposure to coronavirus unless the plaintiff can prove by clear and convincing evidence that:

The defendant did not make reasonable efforts to comply with “applicable government standards and guidance” concerning exposure;
The defendant engaged in gross negligence or willful misconduct causing actual exposure to coronavirus; and
The actual exposure caused the personal injury to the plaintiff.

Further liability protection is found in Section 164 of the Act. Section 164 allows a defendant business, organization, or school to collect compensatory and punitive damages from a plaintiff if their claim was found to be “meritless.”

If this legislation passes, it will be interesting to note how it is enforced and whether or not it truly deters the litigation it seeks to prevent.

If you have questions or would like more information, please contact Tia Combs at tcombs@fmglaw.com.

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