Liability Debate Belies Low COVID-19 Litigation Numbers

By Braden Campbell
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Law360 (September 18, 2020, 7:47 PM EDT) -- Proponents of a federal proposal to shield businesses from suits alleging they exposed workers to COVID-19 say the measure is necessary to protect businesses from a wave of litigation. But no such wave exists, at least not yet.

Only a fraction of the more than 5,000 coronavirus-related complaints compiled in a rolling tracker created by corporate law firm Hunton Andrews Kurth LLP turn on the sorts of theories the Republicans' proposal would preclude. Though businesses and advocates insist litigation fears are hampering the economic recovery, that threat has so far been modest.

"It's a solution in search of a problem," said Hugh Baran, a National Employment Law Project staff attorney who has opposed state and federal liability shield proposals. "There isn't a flood of litigation, there's just a trickle."

Senate Republicans floated the liability shield in late July as one component of their $1 trillion opening salvo in negotiations with the Democrat-controlled House of Representatives for a fourth coronavirus relief package. Those talks have progressed little in the months since as Majority Leader Mitch McConnell, R-Ky., and company have dug in on the immunity plan, which Democratic leaders have declared a nonstarter for their caucus.

The liability component, known as the Safe to Work Act, would simultaneously empower workers to seek damages when they contract the novel coronavirus on the job while shielding all but the most reckless employers from legal liability. Under the law, workers who contract COVID-19 could go to court, but they couldn't win unless they prove their employer "was not making reasonable efforts" to comply with government rules and recommendations and exposed them to the virus through "gross negligence or willful misconduct," and that this exposure caused them personal injury.

This so-called safe harbor provision is "technically not a complete bar, but it's pretty broad," said Janie Schulman, a Morrison & Foerster LLP attorney who advises employers. The law would not block enforcement actions by the U.S. Department of Labor's Occupational Safety and Health Administration or its state counterparts, nor would it preclude discrimination claims tied to coronavirus or displace state workers' compensation systems. But it would make it tough for workers to secure a payout when they fall ill.

"Then there are a number of procedural hurdles to bringing the claim and having it survive, so you have to be a pretty determined employee to actually pursue a claim," Schulman said.

The measure has the backing of business groups including the U.S. Chamber of Commerce and the National Federation of Independent Business, which say their members are afraid of facing lawsuits as they reopen. An NFIB survey found that 70% of the group's mostly mom-and-pop members are worried about litigation over coronavirus exposure, NFIB Small Business Legal Center Executive Director Karen Harned told Law360.

These businesses are not looking for a get-out-of-jail-free card, but assurances that they won't get sued if they do their best to operate safely, she said.

"Our members … don't want to get [COVID-19] either," Harned said. "I get that workers are wanting to feel safe going into work, and our members are very focused on that."

But these concerns belie the legal landscape, workers' and civil rights advocates say.

Even without a liability shield, workers have few ways to challenge unsafe job conditions or get paid if they get sick and can't work. They can go to state workplace safety offices or OSHA, which can fine employers for failing to protect workers and get their jobs back if they're canned for speaking up. But OSHA is of little help, workers' advocates say: The agency has faced months of criticism for failing to enact strict safety standards and levying modest fines on businesses that skirt general safety obligations. 

Workers who fall ill can also file for workers' compensation, which can provide them lost earnings if they can show they can't work because they caught coronavirus on the job. Because this state-law structure is meant to take the place of workplace injury litigation, it already bars most suits.

"Let's forget about coronavirus and talk about slipping on the floor," said Miriam Clark, an attorney with Ritz Clark & Ben-Asher LLP who represents workers in employment disputes. "If you get injured on the job, you cannot sue your employer for negligence, you have to go through the workers' compensation system, which is one huge liability shield."

The so-called workers' compensation bar notwithstanding, some workers have brought their employers into court during the pandemic. According to Hunton's tracker, workers have filed just over 600 coronavirus-related employment lawsuits in state or federal court since the beginning of March. About 90 of these suits concern "conditions of employment," a designation that encompasses suits over a lack of personal protective equipment, workplace exposure to COVID-19, wrongful death and personal injury — the claims the Safe to Work Act would limit.

"There are very few consumer claims, or workers' claims, and so I feel like we shouldn't have to even make this argument," said Remington Gregg, a civil justice and consumer rights attorney with government watchdog group Public Citizen. "Just look at the data."

Harned conceded that there has been relatively little litigation to date. She speculated that workers' attorneys may have held off on suing to avoid bolstering calls for immunity, or that coronavirus-related workplace litigation may simply see a "slower burn." Coronavirus suits may follow a similar trajectory as asbestos litigation, which has stayed consistent despite expectations that it would taper off years ago, Harned said.

"Just because there's not a flood right now doesn't mean there won't be one later, or that it won't be a steady stream for years to come," Harned said.

The figures also fail to capture instances in which workers send legal demands to employers and extract settlements without going to court, which is common, according to Harned.

Baran, the NELP staff attorney, said he's skeptical the figures will change, however. Between the workers' compensation bar and the ubiquity of arbitration agreements requiring workers to bring claims in solo arbitration, workers already face high barriers to court, he said.

"We don't see any signs of dams breaking anytime soon," he said.

--Editing by Breda Lund and Jack Karp.

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