- Emergency Consultation Services
- FMG BlogLine
By: Davit Zargaryan
On July 27, 2020, the Senate released their proposal for “Phase 4” of emergency assistance to alleviate the impact of the COVID-19 pandemic. The Heath, Economic Assistance, Liability Protection and Schools (HEALS) Act is a combination of smaller bills intended to:
Among the proposals the Safe to Work Act, which establishes liability protections for exposure to COVID-19, elicited a majority of the debate and controversy. Sen. John Cornyn’s (R-Texas) bill proposes a “prudent reopening of businesses and other organizations that serve as the foundation and backbone of the national economy […]”. Sen. Cornyn suggests that Congress must ensure that health care workers and facilities can act “fully to defeat the virus”. Additionally, he reasons that Congress must safeguard the investment of “taxpayer dollars under the CARES Act […]”.
To that end, the proposed bill would create an exclusive cause of action and establish a one-year statute of limitations for a plaintiff to bring forth an actual, alleged, feared, or potential exposure case within the jurisdictions of Federal, State, or Tribal Courts. To be successful a plaintiff must prove by clear and convincing evidence that:
Additionally, the bill provides for defenses (and exceptions to defenses) if there is: (1) conflicting applicable government standards (unless mandatory), (2) written or published policies on the mitigation of transmission of coronavirus (rebuttable by showing noncompliance), and (3) transmission by a third party (unless a plaintiff can establish control or agency). The bill also blocks evidence of mitigation and compliance from being admitted to prove liability.
While negotiations between the House of Representatives, Senate and the White House continue, the Senate joined the House in adjourning until Labor Day. To date, Alabama, Arkansas, Georgia, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, Utah, and Wyoming have already taken steps to narrow liability limits related to COVID-19 exposure. The national legislation would provide a unified approach to a developing trend to protect, but not absolve, employers of their duty to maintain safe operations for customers and workers.
If you have questions or would like more information, please contact Davit Zargaryan at [email protected].