We previously discussed whether Senate Republicans would propose federal liability immunity in the next COVID-19 relief bill. On July 27, 2020, Sen. John Cornyn (R- TX), introduced the SAFE TO WORK (Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy) Act, Section 4317, which would provide broad liability immunity for businesses, health care workers and facilities, educational institutions, and local governments. Sen. Cornyn claims that this bill “would protect those acting in good faith from being sued into oblivion while ensuring bad actors who willingly put their patients, employees, or customers in danger will still be held accountable.”

The SAFE TO WORK Act would create procedural and substantive hurdles for plaintiffs claiming COVID-19 exposure due to negligence. With limited exceptions, the proposed law would create an exclusive federal cause of action for exposure to COVID-19, thus preempting state and tribal laws covering the same activity (unless such laws take a stricter approach). The act would permit any covered lawsuit to be filed in or removed to a federal district court by any defendant. In addition, it would apply retroactively to all cases filed on or after December 1, 2019.

To safeguard against frivolous lawsuits, the act would impose heightened pleading requirements. Every COVID-19 plaintiff would be required to show why they believe the defendant is the cause of exposure to COVID-19. Conversely, the plaintiff has to identify all places and persons with whom they had contact with during the 14-day period before the onset of symptoms and show why they believe those people were not the cause of the exposure. The plaintiff would have to verify, under penalty of perjury the truthfulness of the allegations and provide certified medical records documenting their treatment. The plaintiff would also be required to provide an affidavit from a qualified non-treating physician supporting causation and injury.

The act limits the award of compensatory damages to economic losses, except that the court may award damages for noneconomic losses caused by the willful misconduct of the individual or entity. Punitive damages would also be available for willful misconduct but may not exceed the amount of compensatory damages awarded. If the lawsuit is later determined to be meritless, the act would enable a defendant to later sue the plaintiff (and their attorneys) for damages, punitive damages, and attorneys’ fees. These protections also extend to presuit demand letters seeking settlement in exchange for releasing, waiving, or otherwise not pursuing a COVID-19 claim.

The act’s safeguards would extend to class actions as well. Each putative class member must be provided with notice and a description of the lawsuit. The plaintiffs’ attorneys prosecuting the class action must also provide an economic summary describing the attorneys’ hourly fees being charged or alternatively the contingency fee percentages with an estimate of the total amount that would be paid if the requested damages were to be granted. A plaintiff can only become a class member by affirmatively opting-in (instead of being automatically included in the class by the courts).

While the SAFE TO WORK Act would, if it becomes law, provide new procedural and substantive protections from COVID-19 lawsuits, until such time as federal uniform legislation passes, COVID-19 civil immunity will continue to vary across the country and be based on the ever-changing patchwork of liability-limiting state laws.