A new COVID-19 relief package being considered in the U.S. Senate calls for significant liability protection for employers as they resume business during the pandemic.
Senate Majority Leader Mitch McConnell introduced the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act on July 27. A key feature of interest to employers is the liability protection it aims to provide against lawsuits from employees and customers trying to claim an employer caused them to contract COVID-19.
Under the Republican-backed Senate proposal—which differs sharply from a Democratic-backed House bill passed in May—a business could be sued only if a person making a claim could prove by “clear and convincing evidence” that the business didn’t make “reasonable efforts” to comply with the “applicable government standards and guidance” and that the failure was the result of “gross negligence or willful misconduct,” Christopher S. Mann, an attorney with Jones Walker LLP in New Orleans, Louisiana, says.
Mann says “applicable government standards and guidance” is defined as “mandatory standards or regulations” issued by government agencies or, in their absence, “any guidance, standards or regulations” issued by the agencies.
Regarding employment, Mann says the Act would prevent an employer from being subject to liability or any enforcement proceeding under a number of federal employment laws if it:
- Was “relying on and generally following applicable government standards and guidance”;
- Knew of its obligations under the provisions; and
- Attempted to satisfy the obligations by “exploring options to comply,” “implementing interim alternative protections and procedures” or “follow[ing] guidance” with respect to any exemptions from the obligations.
Employee advocates say the liability protection goes too far because the Occupational Safety and Health Administration (OSHA) and the U.S. Centers for Disease Control and Prevention (CDC) have issued guidance rather than actual requirements, making it easy for businesses to claim they’ve made reasonable efforts to follow at least some guidelines that have been issued.
Workers’ Comp Laws Not Affected
Employers already have some liability protection in the form of state workers’ compensation laws, which provide that workers’ comp is the only remedy for employees suffering work-related injuries and illnesses unless the individual can show the employer was negligent or committed an intentional act—normally a high bar to meet.
So, the liability protections included in the HEALS Act “are primarily focused on claims brought by customers or other third parties against businesses as well as additional protections for the healthcare industry,” Mann says.
Burton J. Fishman, an attorney with Fortney & Scott LLC in Washington, D.C., says in many ways, the Act’s liability protection is “political theater,” since workers’ compensation already protects employers from most claims made by employees.
“In a pandemic, how do you prove you got sick at work?” Fishman says. “The only way around is to show gross negligence, which leads to the next problem: Without hard and fast standards, no one —employer or employee—knows how much ‘good faith effort’ is enough.”
Fishman says the proposal’s standard for lawsuits filed by employees isn’t much different from the standard that must be met to get around workers’ compensation as an employee’s sole remedy, “but without reliable standards, no one know what it protects.”
Under the proposal, both employees and a business’ customers seeking to sue a business would face a difficult hurdle in all but the most egregious of circumstances, Mann says. The language of the Act places a number of requirements on those seeking to bring a suit, including that the complaint identify “all places and persons visited” and “all persons who visited the residence” of the one making the claim during the 14-day period before symptoms arose.
Also, the Act would require that the complaint include an affidavit from a nontreating doctor offering an opinion that the person seeking to sue actually suffered the claimed injury, Mann says. Therefore, the language in the proposal will “likely serve as a deterrent” for people considering filing lawsuits, he says.
Unemployment Assistance
The Act also seeks changes in the unemployment benefits provided in the Coronavirus Aid, Relief, and Economic Security (CARES) Act, That Act, signed into law on March 27, provided an extra $600 a week on top of a state’s unemployment benefit. The CARES Act calls for the benefits to end at the end of July.
Critics complained the extra $600 benefit enabled some workers to collect more in unemployment than they earned from their jobs and was therefore a disincentive to returning to work. However, state jobless benefits are denied to people who refuse offers of work unless they have a compelling reason to reject them.
The HEALS Act calls for the extra unemployment benefit to be reduced from $600 to $200 a week through October 5. After that, if would be replaced by a benefit amounting to 70% of the worker’s previous pay up to an extra $500 a week.
Fishman says the 70% plan is “months away because states aren’t equipped to do it and may never be.” He says the “unseen issue” revolves around how people use unemployment benefits. Beneficiaries use those benefits quickly, “buoying up the entire economy,” Fishman says. “Reduce that and the impact will be felt everywhere, but especially by those who need help most,” he says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.
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