July 31, 2020
A key component of the Senate Republicans’ proposed coronavirus measure is an effort to establish liability protections for employers operating in good faith. However, the proposed preemptive federal statute would create a new cause of action for coronavirus exposure claims brought by employees, consumers, and others.
Safe Harbor: A defendant would "not be liable if it undertook reasonable efforts in light of all the circumstances to comply with the applicable mandatory coronavirus standards and regulations in effect at the time of the alleged exposure.” Even where such steps were not taken, the plaintiff would have to show that the defendant’s “gross negligence or willful misconduct” caused the plaintiff’s coronavirus injuries.
The proposal establishes two significant precedents:
Federal employment law protections: The proposal establishes an enforcement and liability safe harbor for various employment laws for actions related to an actual, alleged, feared, or potential for exposure to coronavirus, or a change in working conditions related to coronavirus “if an employer was relying on and generally following applicable government standards and guidance; knew of the obligation under the relevant provision; and attempted to satisfy any such obligation. The measure further protects businesses and employers who cannot offer requested accommodations because they would pose a serious risk to public health from liability under the ADA and Civil Rights Act of 1964.
COVID-19 testing and joint employer protections: The measure also protects coronavirus testing, except for personal injuries caused by the gross negligence or intentional misconduct of the employer. Further, it clarifies that “providing coronavirus-related assistance to an independent contractor or to the employee of another employer does not create an employment relationship between the person who provided the assistance and the person who received it.”
Outlook: With negotiations on the next coronavirus package very much up in the air, it is too soon to know whether the liability protections will ultimately become law. There is strong resistance from House Democrats so even if it does, it is unlikely it would survive in its current form.