On Monday, July 27, 2020, United States Senator John Cornyn of Texas introduced the Safe to Work Act, a companion to the concurrently introduced $1 trillion COVID-19 stimulus bill.  The Safe to Work Act would create uniform standards across all states for plaintiffs to sue businesses for damages related to alleged or actual coronavirus injuries.  While the Act is certain to be revised as it winds through the House of Representatives, several states, including Oklahoma, have already passed laws limiting businesses liability for coronavirus claims.  The Texas Legislature, not scheduled to resume session until 2021, has not yet had an opportunity to consider any such bills.

A.   Safe to Work Act 

The current version of the Safe to Work Act contains the following standards and safeguards regarding personal injury claims arising from the novel coronavirus.

• • “Coronavirus Exposure Action” is broadly defined to include any civil action brought by a person who suffered personal injury or is at risk of suffering personal injury from “actual, alleged, feared or potential exposure” to the coronavirus.  Such actions include injuries that occurred in the course of businesses, services, activities or accommodations and that occurred on or after December 1, 2019 and before October 1, 2024.
  • “Coronavirus-Related Medical Liability Actions” receive special treatment and are even more broadly defined to include not only the diagnosis, care, and treatment of individuals infected with the coronavirus, but also any health care services provided during the Federal emergency declaration if the health care provider’s decisions were “impacted as a result of the coronavirus”. As with Coronavirus Exposure Actions, Medical-Liability Actions cover acts or omissions that occurred on or after December 1, 2019 and before October 2, 2024.
  • Coronavirus Exposure Actions and Coronavirus-related Medical Liability Actions are subject to a one-year statute of limitations.
  • Federal courts have concurrent jurisdiction over all personal injury COVID-19 related lawsuits; defendants will have the right to remove any such case filed in state court to federal court.
  • Plaintiffs must prove by clear and convincing evidence, a higher burden of proof than for typical civil actions, that the business did not make “reasonable efforts” to comply with governmental standards or guidance in effect at the time of the alleged exposure, engaged in gross negligence or willful misconduct that caused actual exposure to the coronavirus, and was the actual exposure caused the personal injury to the plaintiff. As defined in the current Act, gross negligence requires a conscious, voluntary act or omission in reckless disregard of a legal duty, the consequences to another party, and applicable governmental standards and guidance.
    • Notably, the Act creates a legal presumption that a business has made “reasonable efforts” if it maintained a “written or published policy on the mitigation of the transmission of the coronavirus” at the time of the alleged exposure that complied with the appliable standards and guidance.
  • The Act imposes severe pleading requirements, requiring plaintiff to include in the original complaint a list of places plaintiff went and people plaintiff met in the 14-day period prior to experiencing symptoms, and any persons who visited plaintiff’s residence during the same 14-day period, along with factual statements of why those places or persons were or were not the cause of the alleged personal injury.
    • Plaintiff must verify the allegations in the complaint.
    • Plaintiff must file with the complaint an affidavit from a non-treating medical expert that explains the basis for the expert’s belief that the plaintiff suffered the alleged personal injury, harm or damage.
    • Plaintiff must file with the complaint certified medical records documenting the alleged personal injury, harm or damage.
  • The Act eliminates joint and several liability except in cases where the fact finder determines that the business acted with specific intent to injure the plaintiff or knowingly committed fraud.
  • Compensatory damages are limited to economic losses and must be reduced by payments from collateral sources, such as insurance companies.
  • Non-economic damages, for instance pain and suffering, are allowed only if the plaintiff proves the business acted with willful misconduct, defined as acting intentionally to achieve a wrongful purpose and in disregard of a known risk that is so great as to make it highly probable that the harm will outweigh the benefit.
  • Punitive damages are allowed only if the plaintiff proves willful misconduct and the amount awarded cannot exceed the amount of compensatory damages awarded.
  • If plaintiff sends a “meritless” demand letter, the business may sue the plaintiff for compensatory damages, including costs incurred in responding to the demand, and punitive damages.

Many of these provisions have been championed by tort reform advocates long before the COVID-19 pandemic started.  Given that the House of Representatives is not as business-friendly as the Senate, we can expect many of the provisions in the Safe to Work Act to change before being a final bill is sent to the President for signature.

B.    Oklahoma Statute

Many states have already enacted laws that create some form of immunity from coronavirus-related claims.  The Right to Work Act would preempt or supersede all federal and state statutes, rules, and case-law, except such statutes, rules or case-law that impose more stringent requirement on plaintiffs or more severely limit the liability of businesses.  Oklahoma provides an example of a state that has already enacted legislation that is more-business friendly and that would not likely be preempted by the Act.

In May 2020, the Oklahoma Legislature passed and the Governor signed SB 1946, an act relating to civil liability arising from COVID-19.  The Oklahoma statute broadly states that a person who conducts business in Oklahoma “shall not be liable in a civil action claiming an injury from exposure or potential exposure to COVID-19”, provided the alleged violation of the duty of care was, in fact, consistent or in compliance with federal or state regulations, a Presidential of Gubernatorial order, or guidance applicable at the time of the alleged exposure. If two or more sources of guidance are applicable, the business is not liable so long as its conduct was consistent with any applicable guidance.  The statute broadly defines guidance as written guidelines from the CDC, OSHA, or any state agency, board or commission.

C.    Texas

It is unclear whether bills will be introduced in the 2021 Texas legislative session seeking to minimize or immunize businesses from liability related to COVID-19 exposure.  Much will depend on whether Congress passes the Safe to Work Act and whether the final version of the Act provides any meaningful relief to businesses.

The attorneys in our Austin and Dallas offices are available to answer any questions you may have regarding the Safe to Work Act or other efforts to immunize businesses from COVID-19 related claims.

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