Republicans in the U.S. Senate are pushing a bill called “The Safe to Work Act” that really should be called “Less Safe to Work Act.” The bill would shield businesses and healthcare providers from coronavirus-related injury lawsuits. It would introduce significant hurdles for employees, customers and patients who want to sue for corona-related negligence.
These hurdles include: a five-year period of limited immunity for certain defendants in coronavirus-related personal injury and medical malpractice suits; a two-pronged requirement that plaintiffs must show that a business was grossly negligent or engaged in willful misconduct and failed to make "reasonable efforts" to comply with applicable public health guidelines; cases would be subject to a "clear-and-convincing" evidentiary standard; and, there would be limitations on noneconomic damages such as pain and suffering. In other words, this bill is designed to make it nearly impossible for a worker, customer, or patient to recover where an establishment's recklessness caused an infection.
The bill's sponsor, Sen. John Cornyn, R-Texas, said all of this is necessary to prevent businesses "from being sued into oblivion." Where's the concern for people who have become ill?
The legal media outlet Employment Law 360 interviewed Nina Kohn, a professor at the Syracuse University College of Law who said the only good thing about the bill is the title. Professor Kohn said: "It is the kitchen sink of tort reforms. It's possibly the kitchen bathtub, though, because there are things in here that are unscrupulous and extraordinary. . .Not only is this an incredible amalgamation of every tort reform wish list, there are things in here that, to the best of my knowledge, are unprecedented."
Kohn also told Employment Law 360 that the bill defines gross negligence as “reckless disregard of both legal duty and applicable government standards and guidance.” She said this narrowed definition means "things that we would consider gross negligence [under common law] would not be considered gross negligence here."
The proposed legislation also has problematic procedural requirements such as a one-year statute of limitations, the filing of an affidavit of merit from a medical expert who did not treat an injured plaintiff, contact-tracing details, and a statement of facts that Kohn says gives “rise to a strong inference that the defendant acted with the required state of mind." The required state of mind refers to reckless disregard. In other words, a defendant acts recklessly if they consciously disregard a substantial and unjustifiable risk that has a bad result or causes harm. What makes this section of the bill especially difficult is the added element of proving that state of mind with regard to both duty (by the accepted definition of reckless disregards) and government standards on top of that. Then you pile on the aforementioned procedural hoops and it becomes a HUGE burden for employees or others to prove negligence.
Many legal experts have commented on this bill and most think that some of the more stringent components of the legislation will be removed from any final version. Let's hope they are right, because this bill is clearly designed to protect businesses at the expense of their workers, their customers, and, in the case of healthcare, their patients.
One fear is that if a bill this draconian were to pass, companies would essentially have a green light to do as they please - they would effectively be immune from any legal responsibility.
We will continue to monitor developments with this bill and will provide timely updates on our blog.
Kathy Harrington-Sullivan contributed to this blog post.