On July 27, 2020, Senator John Cornyn, for himself and Senate Majority Leader Mitch McConnell, introduced the SAFE TO WORK Act (the “Act”) as part of the Senate’s new $1 trillion stimulus proposal. This bill would provide significant liability protection for claims related to the coronavirus brought against businesses, educational institutions, health care providers, non-profits and government agencies. Note that Majority Leader McConnell said recently that any new coronavirus relief legislation will not pass the Senate unless it includes liability protections. Highlights of the Act include the following:

Coronavirus Exposure Claims

• The Act would create an exclusive federal cause of action for coronavirus exposure claims (claims alleging personal injury from exposure to COVID-19 caused by the defendant). Other federal and state laws related to recovery for personal injuries caused by exposure to coronavirus that create liability broader in scope than the Act would be preempted. The Act would not preempt any workers’ compensation schemes, government enforcement actions or intentional discrimination claims.
• Plaintiffs would be required to prove, by “clear and convincing” evidence, that (1) the defendant was not making reasonable efforts to comply with applicable governmental standards and guidance, (2) the defendant engaged in gross negligence or willful misconduct, and (3) the actual exposure to coronavirus caused the personal injury of the plaintiff. The “clear and convincing” standard of proof is higher than the “preponderance of the evidence” standard that is common in many civil actions.
• Coronavirus exposure actions would be subject to a one year statute of limitations.

Coronavirus-Related Medical Liability Claims

• The Act would also create an exclusive federal cause of action for coronavirus-related medical liability actions, which are defined generally as claims for personal injury brought against a health care provider for health care services related to the coronavirus. Other federal and state laws that impose liability on broader grounds would be preempted, with certain exceptions. Government enforcement actions, intentional discrimination claims, the protections afforded by the Public Readiness and Emergency Preparedness Act for coronavirus-related health care services and existing federal laws covering vaccine-related injuries would not be preempted.
• A plaintiff bringing an action against a health care provider would be required to prove by “clear and convincing” evidence that (1) the health care provider engaged in gross negligence or willful misconduct, and (2) the alleged harm resulting in personal injury was directly caused by such alleged gross negligence or willful misconduct.
• Coronavirus-related medical liability actions would be subject to a one year statute of limitations unless tolled in certain circumstances.

Coronavirus-Related Actions Generally

• If a final judgment is rendered in a coronavirus-related action (i.e., a coronavirus exposure claim or a coronavirus-related medical liability claim), a defendant would be liable only for the portion of the judgment that corresponds to such party’s proportionate responsibility unless there was specific intent to injure or the defendant knowingly committed fraud.
• In any coronavirus-related action, (1) compensatory damages would be limited to economic loss (unless the injury was caused by willful misconduct), (2) punitive damages would be awarded only if the injury was caused by willful misconduct, and (3) any such punitive damages would be limited to the amount of any compensatory damages awarded.
• The Act includes specific pleading, filing, procedural and related requirements that are particular to the foregoing claims, including class actions.

Cause of Action for Demand Letters

• The Act would create a cause of action in favor of defendants who receive demand letters for coronavirus-related claims if those claims are meritless.

Labor and Employment

• Employers would be protected from liability under certain federal employment and other laws for actions taken by the employer to comply with applicable government standards and guidance regarding the coronavirus.
• Employers would not be liable for injuries resulting from coronavirus testing except to the extent caused by gross negligence or willful misconduct.

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As Washington considers next steps to help the country and the economy battle the coronavirus pandemic, the targeted liability protections set forth in the Act will likely be the subject of intense debate. We will continue to monitor developments.