George Orwell once opined on how the language of politics serves primarily to “make lies sound truthful.” The United States Senate has introduced a coronavirus response bill that proves the truth of Orwell’s hypothesis. Although bearing the name “SAFE TO WORK Act,” the Senate’s proposed bill does the opposite by stripping away workplace safety protections for American workers and codifying means of keeping other violations private. Below, we break down the consequences of the SAFE TO WORK Act were it to be passed.
How the SAFE TO WORK Act Addresses COVID-19 in the Workplace
One of the largest questions looming over American workplaces concerns who is ultimately responsible for COVID-19 transmission that might occur. Businesses are required to remain in compliance with local and state guidelines in order to operate during the pandemic, but overwhelmed local health agencies can conceivably result in scenarios where insufficient enforcement results in transmission. If an employer refused to enforce physical distancing or face covering guidelines, it might be weeks or even months before a government official can investigate the concern and mandate a fix. In that time, it is very possible that the especially infectious coronavirus is transmitted between customers and employees. If you become ill, shouldn't your employer - the authority responsible for keeping their employees safe - be held responsible?
According to the U.S. Senate's proposed bill, no, they should not be held accountable. The ironically named "SAFE TO WORK Act" would limit the right of any person exposed to the coronavirus at work to recover in a lawsuit against a business unless the business took affirmative action that was either intended to, or virtually guaranteed to, cause the person to become infected by coronavirus. A company would also be immunized from liability by proving it either (1) complied with any government guidelines related to coronavirus mitigation; or (2) had a written policy in place that complied with coronavirus mitigation guidance.
These terms would give employers a huge advantage in shielding themselves from litigation on a federal level. An employer could conceivably block a seemingly justified lawsuit by producing a written policy regarding COVID-19 safety. Any lax enforcement that may have contributed to the transmission will likely be difficult to prove, and given the wording of the law, it would appear employees would still be protected so long as they did not intentionally create a situation conducive to transmission. In other words, unless your boss deliberately and publicly flaunted masking requirements and mandated all employees simultaneously gather in an indoor space - or some other egregious display of recklessness - an employee infected with COVID-19 will likely be out of luck.
As applied to workers injured by their employer’s misconduct, this law erects a tremendous barrier to recovery. The bill also limits damages to “economic” damages, for example, damages like lost income and medical expenses, unless the injured person can prove the company engaged in “willful misconduct.” The injured person can only recover for the physical pain and suffering of a coronavirus infection if he or she meets that high bar of proving willful misconduct. Keep in mind that a serious COVID-19 infection can lead to protracted hospital stays and numerous, expensive medications. It can also have long-lasting effects that keep you out of work for months. In a typical scenario, a lawsuit could pursue monetary compensation to cure these damages, but the SAFE TO WORK Act heavily restricts this ability.
Additional Roadblocks for COVID-19 Victims
As if the substantive limitations were not onerous enough, the proposed law also includes procedural roadblocks for injured victims, who must publicly name every single person they interacted with in the two weeks prior to coronavirus exposure as well as any place they visited during that time. While this measure is ostensibly meant to support contact tracing efforts to stymie additional outbreaks, it has the effect of introducing yet another hurdle for victims seeking justice. Injured persons must also acquire independent medical evaluations as a prerequisite to filing any lawsuit.
The bill includes procedural devices that may seem innocuous to casual observers. For example, the bill halts all civil discovery if the defendant moves to dismiss the lawsuit and provides a procedure to appeal the denial of motions to dismiss. This seems trivial, but it could be used to effectively lock up a lawsuit for a year or more. Justice delayed is justice denied: Victims who desperately need support will be forced to endure delays in a system intended to halt their progress wherever possible. In another attempt to prevent cases from proceeding on the merits, the proposed law also apparently bans the use of “bellwether” trials in cases organized under federal multidistrict litigation law.
Perhaps worst of all, the Senate’s proposed bill creates a legal weapon for businesses to employ against victims who attempt to settle their lawsuits. Under the proposed bill, a company can sue a person who makes a written settlement offer if the lawsuit proves “meritless.” This potent weapon comes with no limitation on damages and would even allow business to recover attorneys’ fees. This in effect serves as a broad intimidation tactic, as employers will be able to lawfully retaliate against employees who cannot clear the already ludicrously high bar of proving negligence under the terms of this proposed bill.
Taken together, these proposed rules will make it virtually impossible for almost all workers hurt by the coronavirus to recover for their injuries. In this unique and trying moment, employers have a responsibility to keep their employees and customers as safe as feasibly possible. This means exercising extreme caution in all areas of the workplace and enacting all guidelines mandated by local and state health agencies. Inevitably, some unscrupulous employers will fail to rise to this task and put their workers in danger. Contracting COVID-19 in the workplace could lead to months of physical suffering, mental anguish, and lost wages. Even a single vector of transmission out of negligence will also literally put customers and other employees in danger.
In any other situation, you would be entitled to pursue legal action against an employer acting so recklessly. The new Senate bill farcically seeks to protect employers by all means necessary and force the resumption of workplaces that are not necessarily safe under current pandemic conditions. Fortunately, the SAFE TO WORK Act and its provisions are not necessarily expected to become codified into law. The U.S. House of Representatives, which has a Democratic Party majority, has objected to its employee-unfriendly provisions. Less fortunately, a stalemate over these terms will likely prevent additional COVID-19 relief from being passed in the immediate future.
In the meantime, if you have become infected with COVID-19 at your workplace due to the negligence of your employer, do not hesitate to explore your legal options. Our employment attorneys at Haeggquist & Eck, LLP can evaluate the facts of your situation and determine if you have a case.
Call (619) 468-5222 or contact us online to get the legal assistance you need with COVID-19 in the workplace.