Tom Spiggle Senior Contributor
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Congress has been struggling to pass another coronavirus relief bill. One of the sticking points is the Republican Party’s desire to restrict the number of coronavirus lawsuits against businesses, individuals and other entities. This is due to the belief that without such legal protection, a wave of frivolous lawsuits will threaten the economy and the continued existence of businesses, churches, health care providers and schools.
To prevent this, Senators Mitch McConnell (R-KY) and John Cornyn (R-TX) introduced the Safeguarding America’s Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy Act, also known as the SAFE TO WORK Act.
What Does the SAFE TO WORK Act Do?
In short, the SAFE TO WORK Act (STWA) makes it much harder for plaintiffs to sue someone else for injuries relating to a coronavirus infection. For the most part, the STWA doesn’t provide immunity in the casual sense. Rather, it makes it far harder for a plaintiff to bring and succeed in his or her lawsuit.
Specifically, the STWA applies to “coronavirus exposure actions.” These are civil lawsuits relating to injuries that are the result of a coronavirus exposure when patronizing or visiting a business, service or school.
These legal liability protections will only apply when the alleged exposure took place on or after December 1, 2019, and before the date of October 1, 2024 or the coronavirus is no longer considered a public health threat.
If there is a conflict between a state, federal or tribal law and the STWA, the STWA will override the other law. However, there are some exceptions, such as:
Worker’s compensation laws
The law provides greater legal protections for defendants than the STWA
The STWA will also not apply to lawsuits concerning intentional discrimination “on the basis of race, color, national origin, religion, sex (including pregnancy), disability, genetic information, or age.”
How Does the SAFE TO WORK Act Affect a Plaintiff’s Case?
If a prospective plaintiff wants to bring suit for personal injuries caused by the coronavirus, there are several issues they will need to consider.
First, they only have one year to bring suit. Most states have a statute of limitations for personal injuries that’s at least two years. In some states, it’s as high as four years.
Second, the burden of proof is significantly higher. In a typical personal injury case, the plaintiff can succeed if they can prove that the defendant more likely than not caused the alleged injuries. This is referred to as the “preponderance of the evidence” standard.
Under the STWA, the burden of proof is “clear and convincing evidence.” This requires the plaintiff to show that it is highly probable (or substantially more likely) that the defendant caused the plaintiff’s injuries as opposed to the injuries being caused by someone or something else.
Third, the plaintiff cannot win his or her case by showing negligence. Negligence refers to a defendant not acting reasonably under the circumstances. Instead, the plaintiff must show that the defendant acted intentionally or engaged in gross negligence.
Gross negligence is the reckless disregard for the safety in others. We can use an example to illustrate the difference between gross negligence and “regular” negligence.
Regular negligence is like a doctor administering medication and failing to properly notice the patient’s allergic reaction and take appropriate action. Gross negligence would be the doctor administering a medication that the patient is allergic to, but not realizing they are making a mistake because they are drunk on alcohol.
Fourth, the plaintiff has to do more when preparing his or her complaint. The STWA requires the plaintiff to:
Identify all locations visited and individuals they came into contact with during the two weeks before coronavirus symptoms first appeared.
Give the factual basis of why the plaintiff believes the defendant is responsible for giving them the coronavirus and not another person or place visited in the last 14 days.
Provide a statement outlining the nature and amount of claimed damages and the basis for that amount.
Attach an affidavit from a doctor or other medical professional, as well as provide medical records that support the plaintiff’s assertion that they were injured from coronavirus exposure.
Fifth, the plaintiff must bring suit in federal court. Federal courts tend to be more pro-defendant than state courts when it comes to personal injury litigation.
Sixth, there is no joint and several liability, unless the defendant acted intentionally to injure the plaintiff or committed fraud. Without joint and several liability, each defendant only has to pay its portion of damages that corresponds to its portion of wrongful conduct.
Seventh, the plaintiff’s potential damages are significantly limited. The plaintiff can recover economic compensatory damages if the defendant acted with gross negligence. If the defendant acted intentionally, only then can the plaintiff recover noneconomic compensatory damages.
Punitive damages are only available if the defendant acted willfully and may not exceed the compensatory damage award.
Any damages recovered will be reduced by any other form of compensation the plaintiff receives, such as insurance.
Eighth, the STWA allows defendants to sue the plaintiff or the plaintiff’s attorney if either sends a “meritless” demand letter to the defendant asking to settle the case. If successful, the defendant can recover compensatory damages, punitive damages and attorney’s fees and legal costs. The STWA also allows the U.S. Attorney General to sue any individual or organization that “is engaged in a pattern or practice” of sending demand letters. If successful, the Attorney General can obtain up to $50,000 per letter sent.
In summary, the STWA will make it almost impossible for a plaintiff to bring a successful coronavirus personal injury lawsuit. And in cases when it’s not impossible, the amount of recoverable damages will probably be so low, it won’t be worth the cost and risk of a countersuit.
How Does the SAFE TO WORK Act Affect Employment Cases?
There’s some good news and bad news when it comes to the STWA and employees suing their employers.
The bad news is that the STWA can affect some employment litigation cases. If a representative for the employee sues for wrongful death or the employee claims they were injured due to unsafe working conditions, the plaintiff will be severely hindered by the STWA.
For instance, imagine a manager forces employees to come to work, even if the employees are showing signs of a coronavirus infection. The plaintiff complies with this order and gets infected.
The plaintiff believes they became infected at work, but in the last two weeks, they also went shopping at a local grocery store and picked their kids up from pre-school. Based on these facts, it will be extremely difficult for the plaintiff to prove by clear and convincing evidence that the infection came from the workplace and not the grocery store or the child’s pre-school.
Then there’s the fact that because potential recoveries are dramatically lowered, there is the raised pleading standard and potential legal liability for bringing “meritless” lawsuits. Concerning this latter hurdle, even if the plaintiff felt it was worth this risk to sue, they may not find an attorney who is willing to take the case.
The bad news doesn’t stop there. There’s a special provision in the STWA that states in any action relating to coronavirus exposure and brought under a “covered Federal employment law,” employers are not subject to enforcement proceedings or legal liability. Covered Federal employment law includes:
The Occupational Safety and Health Act of 1970
Title VII of the Civil Rights Act of 1964
The Age Discrimination in Employment Act of 1967
The Fair Labor Standards Act of 1938
The Worker Adjustment and Retraining Notification Act
Title TII of the Genetic Information Nondiscrimination Act of 2008
Title I of the Americans with Disabilities Act of 1990
Now for the good news. The STWA is unlikely to pass in its current form. Like most laws that pass Congress, a bit of negotiation is to be expected. The STWA is likely going to be modified assuming it becomes law. The only question is how much modification it will receive.
While the existence of liability protection appears to be non-negotiable for Republicans, exactly how the protection will apply is something that Democrats and Republicans may be able to compromise on.
There’s also the possibility that the STWA may never pass. If Joe Biden becomes president or Democrats take the majority in the Senate, it’s very possible that the STWA will not become law, even heavily watered down.
Finally, the STWA, even in its current form, will not affect the majority of lawsuits brought by employees against their employers. Most of these employment cases deal with legal issues not involving coronavirus exposure or personal injuries. Disputes over discrimination, wrongful termination, retaliation and work leave are far more common.
The Bottom Line
Not all labor cases involving the coronavirus will involve an employer acting illegally or otherwise being unfair to the employee. There will be cases where it may seem like an employer is retaliating or discriminating against the employee, but the employer’s actions have a reasonable basis. For example, the employer needs to downsize as a result of the coronavirus dramatically lowering revenue.
But the STWA, as currently drafted, goes well beyond protecting defendants in these situations. Instead, it would effectively stop the vast majority of coronavirus personal injury lawsuits, even the cases brought in good faith with what would normally be sufficient evidence to prove the plaintiff’s case.
Tom Spiggle
I’m an employment lawyer who writes about your workplace rights.
After clerking for a judge and working as a federal prosecutor, I wanted to spend more quality time with my kids so in 2009 I started the Spiggle Law Firm.
Fifth, the plaintiff must bring suit in federal court. Federal courts tend to be more pro-defendant than state courts when it comes to personal injury litigation.
Sixth, there is no joint and several liability, unless the defendant acted intentionally to injure the plaintiff or committed fraud. Without joint and several liability, each defendant only has to pay its portion of damages that corresponds to its portion of wrongful conduct.
Seventh, the plaintiff’s potential damages are significantly limited. The plaintiff can recover economic compensatory damages if the defendant acted with gross negligence. If the defendant acted intentionally, only then can the plaintiff recover noneconomic compensatory damages.
Punitive damages are only available if the defendant acted willfully and may not exceed the compensatory damage award.
Any damages recovered will be reduced by any other form of compensation the plaintiff receives, such as insurance.
Eighth, the STWA allows defendants to sue the plaintiff or the plaintiff’s attorney if either sends a “meritless” demand letter to the defendant asking to settle the case. If successful, the defendant can recover compensatory damages, punitive damages and attorney’s fees and legal costs. The STWA also allows the U.S. Attorney General to sue any individual or organization that “is engaged in a pattern or practice” of sending demand letters. If successful, the Attorney General can obtain up to $50,000 per letter sent.
In summary, the STWA will make it almost impossible for a plaintiff to bring a successful coronavirus personal injury lawsuit. And in cases when it’s not impossible, the amount of recoverable damages will probably be so low, it won’t be worth the cost and risk of a countersuit.
How Does the SAFE TO WORK Act Affect Employment Cases?
There’s some good news and bad news when it comes to the STWA and employees suing their employers.
The bad news is that the STWA can affect some employment litigation cases. If a representative for the employee sues for wrongful death or the employee claims they were injured due to unsafe working conditions, the plaintiff will be severely hindered by the STWA.
For instance, imagine a manager forces employees to come to work, even if the employees are showing signs of a coronavirus infection. The plaintiff complies with this order and gets infected.
The plaintiff believes they became infected at work, but in the last two weeks, they also went shopping at a local grocery store and picked their kids up from pre-school. Based on these facts, it will be extremely difficult for the plaintiff to prove by clear and convincing evidence that the infection came from the workplace and not the grocery store or the child’s pre-school.
Then there’s the fact that because potential recoveries are dramatically lowered, there is the raised pleading standard and potential legal liability for bringing “meritless” lawsuits. Concerning this latter hurdle, even if the plaintiff felt it was worth this risk to sue, they may not find an attorney who is willing to take the case.
The bad news doesn’t stop there. There’s a special provision in the STWA that states in any action relating to coronavirus exposure and brought under a “covered Federal employment law,” employers are not subject to enforcement proceedings or legal liability. Covered Federal employment law includes:
The Occupational Safety and Health Act of 1970
Title VII of the Civil Rights Act of 1964
The Age Discrimination in Employment Act of 1967
The Fair Labor Standards Act of 1938
The Worker Adjustment and Retraining Notification Act
Title TII of the Genetic Information Nondiscrimination Act of 2008
Title I of the Americans with Disabilities Act of 1990
Now for the good news. The STWA is unlikely to pass in its current form. Like most laws that pass Congress, a bit of negotiation is to be expected. The STWA is likely going to be modified assuming it becomes law. The only question is how much modification it will receive.
While the existence of liability protection appears to be non-negotiable for Republicans, exactly how the protection will apply is something that Democrats and Republicans may be able to compromise on.
There’s also the possibility that the STWA may never pass. If Joe Biden becomes president or Democrats take the majority in the Senate, it’s very possible that the STWA will not become law, even heavily watered down.
Finally, the STWA, even in its current form, will not affect the majority of lawsuits brought by employees against their employers. Most of these employment cases deal with legal issues not involving coronavirus exposure or personal injuries. Disputes over discrimination, wrongful termination, retaliation and work leave are far more common.
The Bottom Line
Not all labor cases involving the coronavirus will involve an employer acting illegally or otherwise being unfair to the employee. There will be cases where it may seem like an employer is retaliating or discriminating against the employee, but the employer’s actions have a reasonable basis. For example, the employer needs to downsize as a result of the coronavirus dramatically lowering revenue.
But the STWA, as currently drafted, goes well beyond protecting defendants in these situations. Instead, it would effectively stop the vast majority of coronavirus personal injury lawsuits, even the cases brought in good faith with what would normally be sufficient evidence to prove the plaintiff’s case.
Tom Spiggle
I’m an employment lawyer who writes about your workplace rights.
After clerking for a judge and working as a federal prosecutor, I wanted to spend more quality time with my kids so in 2009 I started the Spiggle Law Firm.
