On July 27th, Senator Cornyn (R-TX) introduced Senate Bill 4371 – Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy Act or the “Safe to Work Act.”   This bill provides the civil liability protections we have been advocating for along with a coalition of other provider associations.

We support the Senate proposal, which provides targeted, temporary, and reasonable protections for providers that act in good faith and whose actions do not constitute willful misconduct or gross negligence during the pandemic.

The bill creates exclusive federal causes of action related to coronavirus “exposure” and “medical liability” claims, with the first claim being directed at protections for general businesses and the later specifically for health care providers. The proposed bill does not provide complete immunity for providers, but rather changes various elements of bringing a coronavirus-specific claim, including the standard of proof, damages, proportionate liability, and causation.

Under a coronavirus medical liability action, lawsuits would be limited to allegations of gross negligence or willful misconduct. Also, that gross negligence or willful misconduct must have been the cause of the injury. The standard of proof is clear and convincing evidence. In addition, any act, omission, or decision resulting from a resource or staffing shortages shall not be considered gross negligence or willful misconduct.

The definition of “health care provider” in the bill is broad and includes both practitioners and providers. This would include nursing homes, assisted living, and other providers authorized to provide “services and supports furnished in a home or community-based residential setting under the State Medicaid program or waiver of that program.”

A plaintiff must file a claim within 1 year of the alleged harm and the bill encompasses claims retroactively and through September 2024.

Federal courts will have exclusive jurisdiction of these claims and defendants may seek to remove suits previously filed in state court to federal court.

This bill would preempt and supersede existing state laws, except those existing state laws that provide stricter and/or more liability protections to providers and businesses on coronavirus claims.

Damages would be generally limited to economic losses. A court could award noneconomic damages if there is a finding of willful misconduct, but punitive damages are available only if willful misconduct is found and punitive damages are capped at an amount equal to the compensatory damages awarded.

There is no joint or several liability for defendants in these action. Instead, there is proposed proportionate liability –whereby a defendant is only responsible for the percentage of the damages equal to their percentage of fault.  This proportionate liability can be waived if the court finds specific intent or fraudulent actions.

Finally, the bill does not impact or limit workers compensation laws that states have in place for workplace injuries. Employees would still have the protections of state workers compensation schemes.

As for housing providers, most of whom will not fall under the definition of health care providers, they will have the general business protections outlined in the bill.

For an “exposure” claim against a housing provider to succeed the plaintiff must show by clear and convincing evidence that 1) the business was not making reasonable efforts to comply with government standards or guidance; 2) the entity was engaged in willful misconduct or gross negligence; and 3) exposure caused the personal injury of the plaintiff. There is a safe harbor for business that make reasonable efforts to comply with guidance and standards.