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 keeping them quiet.
The Senate’s proposed bill would limit the right of any person exposed to 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.
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.
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. Injured persons must also acquire independent medical evaluations as a prerequisite to filing any lawsuit. The bill also includes procedural devices that 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, and justice delayed is justice denied. 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.
Taken together, these proposed rules will make it virtually impossible for almost all workers hurt by the coronavirus to recover for their injuries.