Wednesday, July 29, 2020

Coronavirus Update 7-29-2020: SAFE TO WORK Act would offer employers a significant shield from employee COVID-19 lawsuits

Earlier this week, Senate Republican introduced their $1 trillion COVID-19 economic stimulus package. Among other proposals the bill contains the SAFE TO WORK Act [pdf], which would provide employers a significant shield from liability for lawsuits related to coronavirus exposure by requiring gross negligence or willful misconduct that actually causes a personal injury before liability could attach. 

Employers would receive significant protections from employment-related COVID-19 lawsuits brought by employees. 

If passed, the law would provide significant protections to employers under OSHA, the FLSA, the WARN Act, Title VII, the ADEA, the ADA, and GINA.

Generally, in any action, proceeding, or investigation resulting from or related to an actual, alleged, feared, or potential exposure to coronavirus, or a change in working conditions caused by a law, rule, declaration, or order related to coronavirus, an employer would not be subject to any enforcement proceeding or liability if the 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 by: (i) exploring options to comply with such obligations and with the applicable government standards and guidance (such as through the use of virtual training or remote communication strategies); (ii) implementing interim alternative protections or procedures; or (iii) following guidance issued by the relevant agency with jurisdiction with respect to any exemptions from such obligation.

The law would also provide liability for any workplace coronavirus testing, except for personal injuries caused by the gross negligence or intentional misconduct of the employer or another person.

The law would prohibit a finding of joint employment status or of an employment relationship under any of the above noted statutes and the NLRA, ERISA, and the FMLA, if an employer provides or requires— 
  • Coronavirus-related policies, procedures, or training
  • Personal protective equipment or training for the use of such equipment
  • Cleaning or disinfecting services or the means for such cleaning or disinfecting.
  • Workplace testing for coronavirus.
  • Temporary assistance due to coronavirus, including financial assistance or other health and safety benefits.

Finally, the law would amend the WARN Act to make clear that employers are not required to provide WARN notices for shutdowns or mass layoffs that are "a result of the COVID–19 national emergency."

This law will put a premium on employers understanding, implementing, and enforcing required and recommended COVID-19 safety rules and protections. If you don't already have these in place your workplace, (1) why not, (2) what are you waiting for, (3) you now have quite the incentive to do so, and (4) you really shouldn't need this economic incentive to protect the health and safety of your employees.

* Photo by James Pond on Unsplash