On July 27th, 2020 John Cornyn, Senior Senator from Texas (R) and Mitch McConnell, Senate Majority Leader from Kentucky (R), introduced the ‘SAFE TO WORK Act’ (S. 4317). The legislation is an acronym, Safeguarding America’s Frontline Employees To Offer Work Opportunities To Kickstart the Economy. While the name of the bill indicates that the purpose is to ‘safeguard’ employees, what follows is a piece of legislation that systematically eliminates worker protection and instead focuses on limiting the liability of corporations from potential lawsuits for failure to protect their frontline employees.
The bill has received little attention, as the new HEALS Act with billions for fighter jets and a new FBI headquarters has grabbed the limelight. Do not be fooled, however, the SAFE TO WORK Act is far more nefarious than the simple siphoning of money for superfluous projects. The SAFE TO WORK Act will make every American worker less safe. Here is why:
(NOTE – We are not lawyers, nor are we attempting to give legal advice. This is purely an examination of the legislation by activists. We encourage everyone to download the FULL SAFE TO WORK ACT HERE and read it for themselves)
FROM PAGE 3 OF THE ACT:
“For months, frontline health care workers and health care facilities have fought the virus with courage and resolve. They did so at first with very little information about how to treat the virus and developed strategies to save lives of the people of the United States in real time. They risked their personal health and wellbeing to protect and treat their patients.”
Unlike the House passed HEROES (Health and Economic Recovery Omnibus Emergency Solutions – passed on May 15th, 2020) Act, which included $200 billion in hazard pay to thank essential workers for their sacrifices during the COVID-19 pandemic, this is the extent of reward frontline workers will receive from the SAFE TO WORK Act. They are acknowledged, lauded and then the rest of the legislation is designed to limit their ability to protect themselves from poor workplace safety by corporations.
Let us continue…
FROM PAGE 7 OF THE ACT:
“These lawsuits also risk diverting taxpayer money provided under the CARES Act and other coronavirus legislation from its intended purposes to the pockets of opportunistic trial lawyers.”
Saying this shows no shame, would be an insult to the expression, “Have you no shame?”. Corporations have already leeched billions of dollars out of the CARES Act that has been funneled away from where it was intended. There was no need for ‘opportunistic trial lawyers’ to do anything. The problem here is not the possibility of greedy attorneys, the issue at hand is cagey corporate lobbyists who have paid their way into a piece of legislation that makes American workers less safe.
FROM PAGE 19 OF THE ACT
“GROSS NEGLIGENCE.—The term ‘‘gross negligence’’ means a conscious, voluntary act or omission in reckless disregard of—
(A) a legal duty;
(B) the consequences to another party; and
(C) applicable government standards and guidance.”
This is extremely important wording. The term ‘gross negligence’ is vastly different from a plaintiff needing to prove with a ‘preponderance’ of the evidence. This high hurdle sets the stage for lawsuits to become exceedingly more difficult to prove, which will increase costs and deter lawsuits from being filed in the first place. The deck is being stacked against those seeking justice from the start.
FROM PAGE 25 OF THE ACT:
“WILLFUL MISCONDUCT.—The term ‘‘willful misconduct’’ means an act or omission that is taken—
(A) intentionally to achieve a wrongful purpose;
(B) knowingly without legal or factual justification; and
(C) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”
The hits keep coming. Not only is it required to prove gross negligence, but the employee must then prove that it was also done with intent. The language throws more obstacles in the path of workers potentially harmed by the actions or inactions of companies putting financial gains over the safety of their employees.
FROM PAGE 27 OF THE ACT:
“IN GENERAL.—Except as described in paragraphs (2) through (6), this subtitle preempts and supersedes any Federal, State, or Tribal law, including statutes, regulations, rules, or standards that are enacted, promulgated, or established under common law, related to recovery for personal injuries caused by actual, alleged, feared, or potential for exposure to coronavirus.”
Remember those old safety standards that have been in place for decades to keep workers safe? The ones implemented to curb reckless corporate behavior that killed, maimed and injured workers in horrific ways? Toss those out the window. The new Act would supersede OSHA (Occupational Safety and Health Act of 1970), FLSA (the Fair Labor Standards Act of 1938), ADA (the Americans with Disabilities Act of 1990) and others. The United States already has safety measures in place to protect workers on the job. Those federal safeguards were fought for and won through the struggle and turmoil of generations of workers. They were enacted by conscientious lawmakers who understood that the pieces of legislation were literally life and death for American workers.
FROM PAGE 29 OF THE ACT:
“REQUIREMENTS FOR LIABILITY FOR EXPOSURE TO CORONAVIRUS.—Notwithstanding any other provision of law, and except as otherwise provided in this section, no individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any coronavirus exposure action unless the plaintiff can prove by clear and convincing evidence that—
(1) in engaging in the businesses, services, activities, or accommodations, the individual or entity was not making reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance in effect at the time of the actual, alleged, feared, or potential for exposure to coronavirus;
(2) the individual or entity engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; and
(3) the actual exposure to coronavirus caused the personal injury of the plaintiff.”
No further words necessary.
FROM PAGE 30 OF THE ACT:
“IN GENERAL.—If more than 1 government to whose jurisdiction an individual or entity is subject issues applicable government standards and guidance, and the applicable government standards and guidance issued by 1 or more of the governments conflicts with the applicable government standards and guidance issued by 1 or more of the other governments, the individual or entity shall be considered to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection unless the plaintiff establishes by clear and convincing evidence that the individual or entity was not making reasonable efforts in light of all the circumstances to comply with any of the conflicting applicable government standards and guidance issued by any government to whose jurisdiction the individual or entity is subject.”
The employer is only required to make an attempt at compliance in order to meet requirements. Did they post a list of CDC guidelines and deem that their policy? Compliance! Did they post a policy on the importance of limiting transmissions of the coronavirus? Compliance! There is nothing requiring them to make a good faith, earnest attempt at providing a safe working environment. They just have to do something, or more aptly, anything to avoid legal liabilities.
FROM PAGE 32 OF THE ACT:
“IN GENERAL.—If an individual or entity engaged in businesses, services, activities, or accommodations maintained a written or published policy on the mitigation of transmission of coronavirus at the time of the actual, alleged, feared, or potential for exposure to coronavirus that complied with, or was more protective than, the applicable government standards and guidance to which the individual or entity was subject, the individual or entity shall be presumed to have made reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection.”
Just in case there were any questions, this is spelled out more clearly. Does the corporation have a posted policy? That is safe enough.
FROM PAGE 33 OF THE ACT:
“(ABSENCE OF A WRITTEN OR PUBLISHED POLICY.—The absence of a written or published policy shall not give rise to a presumption that the individual or entity did not make reasonable efforts in light of all the circumstances to comply with the applicable government standards and guidance for purposes of subsection.”
Just in case they did not have a written or published policy, that does not mean they weren’t derelict in their safety responsibilities. After all, the extent of what is required of an employer is to make an attempt at being safe. Sometimes the act of having to actually put your policy into words and sending it to your employees can be way too much work. (NOTE – HEAVY SARCASM IN USE THIS PARAGRAPH)
FROM PAGE 33 OF THE ACT:
“TIMING.—For purposes of subsection (a)(1), a change to a policy or practice by an individual or entity before or after the actual, alleged, feared, or potential for exposure to coronavirus, shall not be evidence of liability for the actual, alleged, feared, or potential for exposure to coronavirus.”
Just because after we got the entire workforce sick from our totally inept safety policy and then put something in place to correct the issue, that does not mean we were culpable previously. How many different ways does this Act need to place an insurmountable firewall in front of workers seeking justice for being placed in harm’s way?
FROM PAGE 39 OF THE ACT:
“JURISDICTION.—The district courts of the United States shall have concurrent original jurisdiction of any coronavirus-related action.”
The bill moves liability cases to the federal court. Federal court in general increases the costs for plaintiffs. This is another measure to bulwark against any potential litigation by employees seeking damages. It also presents further impediments to even filing the claim to begin with.
FROM PAGE 42 OF THE ACT:
“LIMITATIONS ON DAMAGES.—In any coronavirus related action— the award of compensatory damages shall be limited to economic losses incurred as the result of the personal injury, harm, damage, breach, or tort, except that the court may award damages for noneconomic losses if the trier of fact determines that the personal injury, harm, damage, breach, or tort was caused by the willful misconduct of the individual or entity;
punitive damages— may be awarded only if the trier of fact determines that the personal injury to the plaintiff was caused by the willful misconduct of the individual or entity; and may not exceed the amount of compensatory damages awarded;
and the amount of monetary damages awarded to a plaintiff shall be reduced by the amount of compensation received by the plaintiff from another source in connection with the personal injury, harm, damage, breach, or tort, such as insurance or reimbursement by a government.”
The Bill would enact a limitation on damages. The plaintiffs can only collect for actual damages if they cannot prove “willful misconduct” by the employer. Even in those cases, punitive damages will could not exceed actual damages. This is put in place to restrict ‘tort lawsuits’. By limiting potential punitive awards, it would not be as financially viable to bring forth litigation in the first place. There would not be enough money to make it worth the lawyer’s time, thus reducing the quality of representation a worker could secure.
FROM PAGE 45 OF THE ACT:
“with respect to a coronavirus exposure action, all places and persons visited by the person on whose behalf the complaint was filed and all persons who visited the residence of the person on whose behalf the complaint was filed during the 14-day-period before the onset of the first symptoms allegedly caused by coronavirus, including — each individual or entity against which a complaint is filed, along with the factual basis for the belief that such individual or entity was a cause of the personal injury alleged; and
(ii) every other person or place visited by the person on whose behalf the complaint was filed and every other person who visited the residence of the person on whose behalf the complaint was filed during such period, along with the factual basis for the belief that these persons and places were not the cause of the personal injury alleged; and the complaint shall plead with particularity each alleged act or omission constituting gross negligence or willful misconduct that resulted in personal injury, harm, damage, breach, or tort.”
This is a big one. To win in court and prove liability, the plaintiff would need to be able to show completely and totally that for a 14-day-period prior to the onset of sickness that there was nowhere else they could have contracted COVID-19. By the letter of this Act, even if every worker at a plant came down sick, they would still need to be able to show without question that there was nowhere else that they could have contracted the coronavirus. If they could not, the company would not be liable. This is a Herculean task to place in front of those seeking justice.
FROM PAGE 48 OF THE ACT:
“MATERIALS REQUIRED.—In any coronavirus-related action filed in or removed to a district court of the United States, the plaintiff shall file with the complaint—
(A) an affidavit by a physician or other qualified medical expert who did not treat the person on whose behalf the complaint was filed that explains the basis for such physician’s or other qualified medical expert’s belief that such person suffered the personal injury, harm, damage, breach, or tort alleged in the complaint; and
(B) certified medical records documenting the alleged personal injury, harm, damage, breach, or tort”
The employee’s doctor is not even considered a credible witness! An affidavit from another qualified medical professional who did not treat them is required per the SAFE TO WORK Act.
FROM PAGE 52 OF THE ACT:
“SEC. 164. DEMAND LETTERS; CAUSE OF ACTION.
CAUSE OF ACTION.—If any person transmits or causes another to transmit in any form and by any means a demand for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-related action, the party receiving such a demand shall have a cause of action for the recovery of damages occasioned by such demand and for declaratory judgment in accordance with chapter 151 of title 28, United States Code, if the claim for which the letter was transmitted was meritless.”
If a lawsuit is filed, it then opens the plaintiff to potential litigation in the future. The employer can sue the employee for filing the lawsuit! A common tactic for damage cases is to lay out the initial argument, and then settle out of court. This language creates another layer of fear for workers seeking compensation for harm done by insufficient safety measures taken by an employer.
FROM PAGE 53 OF THE ACT:
“DAMAGES.—Damages available under subsection shall include— compensatory damages including costs incurred in responding to the demand; and punitive damages, if the court determines that the defendant had knowledge or was reckless with regard to the fact that the claim was meritless.”
Remember previously when plaintiffs were only eligible for actual damages? That is not the case for the employers. They can sue for punitive damages as well. They could economically destroy a worker for bringing forth a case.
FROM PAGE 54 OF THE ACT:
“IN GENERAL.—Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of transmitting demands for remuneration in exchange for settling, releasing, waiving, or otherwise not pursuing a claim that is, or could be, brought as part of a coronavirus-related action and that is meritless, the Attorney General may commence a civil action in any appropriate district court of the United States.”
This would grant the authority to Attorney General William Barr to sue lawyers, doctors, unions, activists and anyone else involved in a coronavirus-related claim.
This is a monstrous piece of legislation that imperils every American worker. It will strip away federal protections that have been in place for generations. It will limit the responsibility of corporations to create safe work environments. It will open the door for countless employees to be adversely impacted. There are already safeguards in place to maintain a protected workplace. This piece of legislation does not crack the door on reducing safety measures, it smashes it off the hinges with a battering ram. Do not be distracted by articles about fighter jets and federal buildings. The true danger to American workers comes from the SAFE TO WORK Act.
Contact your elected representatives and tell them that the SAFE TO WORK Act is not safe for workers.