COVID-19 Reading List

July 24, 2020

Jonathan D. Urick, U.S. Chamber Litigation Center  

This week’s reporting and commentary on COVID-19 litigation primarily focused on the debate over federal liability protections: the highlights of the Senate GOP’s proposal (expected to be released next week), the Democrats’ alternative proposal, a possible compromise, and a letter from 21 state governors urging Congress to act.  Other interesting articles took a closer look at state liability protections, liability waivers for independent contractors, and the CFPB’s latest enforcement priorities amid the pandemic.

Senate GOP Outlines Proposal for Liability Protections and Federal-Court Jurisdiction

The Hill reports that Senate Majority Leader Mitch McConnell will unveil the GOP liability-protection proposal next week.  According to an outline, the proposal will include “a five-year shield from coronavirus lawsuits[,]…retroactive from December 2019 through 2024, or the end of an emergency declaration issued by the Department of Health and Human Services if that is later.”  Institutions such as businesses, colleges, schools, and churches would be protected from legal liability unless they failed to make “reasonable efforts” to follow public-health guidelines and “committed an act of gross negligence or intentional misconduct.”

According to the Wall Street Journal, the proposed legislation “also sets a clear-and-convincing-evidence burden of proof, places a cap on damages and heightens pleading standards.”  The debate over liability protections “could become a major sticking point,” Roll Call reports, in the negotiations over another pandemic economic-relief package.

In addition, according to both The Hill and the Journal, the Senate GOP legislation would give federal courts jurisdiction over coronavirus-related tort suits.  Indeed, Bloomberg Law reports that companies facing such lawsuits in state court are increasingly attempting to remove them to federal court not merely upon diversity of state citizenship “but also upon federal question jurisdiction” based on directives from the Occupational Health and Safety Administration.

Democrats’ Alternative Proposal and Possible Compromise

Newsday reports that the Democrats’ alternative to the Senate GOP proposal would require OSHA to issue a temporary emergency workplace-safety standard lasting six months, before adopting a permanent standard.  The standard would require employers to develop and implement “infection-control plans to protect workers based on CDC and other expert guidance.”  According to the article, “[o]ne possible compromise in Congress might be to approve an OSHA standard that would protect employers who follow it from liability lawsuits.”

State Governors Call for Federal Liability Protections

According to Forbes, on Tuesday, a group of 21 Republican governors wrote a letter to leaders in Congress urging them to pass “commonsense” liability protections for businesses, schools, and healthcare providers as part of the next coronavirus relief bill.  “To accelerate reopening our economies as quickly and as safely as possible, we must allow citizens to get back to their livelihoods and make a living for their families without the threat of frivolous lawsuits,” the governors wrote. 

A Closer Look at State Liability Protections

Taking a close look at Georgia’s COVID-19 Pandemic Business Safety Act, the National Law Review (NLR) notes that, while state liability protections “may contain similarities, each law differs from state-to-state in a manner that leaves healthcare providers, businesses, and individuals vulnerable to differing rules and regulations related to COVID-19 liability across their respective footprints.”  Another NLR article likewise examines coronavirus liability rules and protections under Massachusetts law.

Liability Waivers for Independent Contractors

Writing on Bloomberg Law, attorneys from Locke Lord LLP argue that “there are compelling reasons to require independent contractors to sign Covid-19 waiver and release forms, but the documents need to be artfully drafted to withstand strict scrutiny by the courts.”  They look at what should be included and stress the importance of complying with state laws on advance waivers and independent contractors.

CFBP Enforcement Priorities

Finally, over at JD Supra, attorneys from Clark Hill PLC examine the Consumer Financial Protection Bureau’s July 2 press release announcing the agency’s supervision and enforcement priorities “developed in response to COVID-19’s impact upon consumers and the consumer financial marketplace.”  According to their analysis, the announcement was “somewhat out of left field because the CFPB had issued several guidance documents and bulletins since the onset of the COVID-19 pandemic,” but it “confirm[s] that the CFPB fully intends to use its authority to enforce Federal consumer financial law when assessing pandemic-related practices by financial institutions.”