Most recently, the Safeguarding America’s Front-Line Employees To Offer Work Opportunities Required To Kickstart The Economy Act has been introduced into the United States Senate.  Mercifully, the bill is also known as the Safe To Work Act.  Some commentators have noted that, if enacted into law, this measure would almost entirely insulate employers from COVID-19 claims.  Although the authors included language that the bill is not intended to preempt or supersede workers’ compensation laws, this language is, at least arguably, ambiguous.  It could be read to mean that the bill does not supersede the California workers’ compensation system as specified in Article XIV, Section 4 of the California Constitution.  However, an argument could be advanced that to the extent that the specific provisions of the bill conflict with California law the federal standards prevail pursuant to the United States Constitution Supremacy Clause.

The bill opens with the recognition that COVID-19 has wreaked havoc on the United States economy.  The authors reason that Congress consequently is charged with the responsibility to address that threat by promoting the reopening of various entities including small and large businesses, schools, universities and other entities which are specifically recognized as substantial employers.  An express goal of the bill is to shield such employers from “the risk of a tidal wave of lawsuits accusing them of exposing employees…to Coronavirus.”  The authors speculate that employers may decline to reopen because of the risk of litigation.  In particularly caustic language, one purpose of the bill is identified as to “prevent litigation brought to extract settlements and enrich trial lawyers rather than to vindicate meritorious claims.”  The bill pertains to both physical and psychological injury claims related to COVID-19 exposure.

To establish employer liability, a claimant must prove by clear and convincing evidence that the employer was not making a reasonable effort in light of all of the circumstances to comply with applicable government standards and guidance pertaining to Coronavirus exposure, or that the employer engaged in gross negligence or willful misconduct causing actual exposure to Coronavirus.  Finally, the claimant must prove injury as a result of Coronavirus exposure.  Note that this standard of proof exceeds the preponderance of evidence standard generally applicable in workers’ compensation and civil proceedings.

Employers who have written policies deemed to be more protective for Coronavirus exposure than applicable government standards and guidance enjoy a rebuttable presumption that they made reasonable efforts to comply with government mandates.

Additionally, employers would be shielded from any enforcement proceeding or liability under specifically enumerated employment laws if the employer was relying on applicable government standards of which it was aware and attempted to satisfy these obligations with such measures as virtual training, remote communications, or other interim procedures.  These employment laws include the Occupational Safety and Health Act of 1970 (OSHA), the Fair Labor Standards Act of 1938, the Age Discrimination in Employment Act of 1967, and Title I of the Americans With Disabilities Act of 1960 (ADA).

Perhaps one of the most unusual provisions of the bill gives employers the potential right to sue employees who claim to have been injured as a result of COVID-19.  The receipt by an employer of a settlement demand in any form gives rise to a potential claim for compensatory and punitive damages if the claim is deemed meritless.  That term is not defined.

The bill protects medical workers involved in the treatment of COVID-19 from malpractice.  The standards are identical to those pertaining to claims against an employer.

Where does all of this leave us?  The only honest answer is that this is a constantly evolving situation without any definitive answer.  The best advice is to stay tuned.