The Odds of Navigating an Asteroid Field: 3,720 to 1
The Odds of Winning a COVID Case Against Businesses: Good Luck!
After C-3PO warns Han Solo of the odds of successfully navigating an asteroid field, Harrison Ford’s calm, cool, and collected character responds with “never tell me the odds.” But what if instead of navigating an asteroid field, Han was attempting to navigate COVID litigation against a business? Well, if a recently introduced COVID bill passes, he might find that a bit tricky.
Republicans in the Senate introduced a new COVID stimulus bill on 7/27. Included in the bill is the SAFE TO WORK Act. This act would provide broad protections to businesses and other organizations against COVID related litigation from employees or customers.
So, let’s say that Han Solo tested positive for the virus after a trip to the Death Star and now wants to hold Galactic Empire Inc. responsible for COVID related injuries. The bill’s text states that in order to win his case, Han will need to prove that Galactic Empire Inc.:
- 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…exposure to coronavirus;
- engaged in gross negligence or willful misconduct that caused an actual exposure to coronavirus; AND
- the actual exposure to coronavirus caused the personal injury of the plaintiff.
A more detailed look at the bill’s requirements:
Applicable Government Standards
- Businesses only need to prove that they were in compliance with ANY governing body with jurisdiction over the business. So, if federal and state COVID standards conflict, businesses are free to follow the less onerous route without facing consequences.
Gross Negligence and Willful Misconduct
Basically, plaintiffs need to prove that businesses were aware their actions/ inactions were illegal or irresponsible and chose to proceed anyway.
- Gross Negligence – “a conscious, voluntary act or omission in reckless disregard of a legal duty; the consequences to another party; and applicable government standards and guidance.”
- Willful Misconduct – “an act or omission that is taken intentionally to achieve a wrongful purpose; knowingly without legal or factual justification; and 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.”
Actual Exposure to Coronavirus Caused the Personal Injury
- Plaintiffs must provide a list of every place and every person the plaintiff visited during the 14 days leading up to the start of symptoms and provide “factual basis for the belief that these persons and places were not the cause of [COVID]”
So essentially, Han will need to prove that the Galactic Empire was aware that their actions weren’t permitted under any governing body/ would cause harm AND that the Galactic Empire’s actions/inactions (and not COVID exposure from daily life) caused Han to contract the virus.
Despite his cavalier attitude and ample chest hair, Han may be having a few doubts by this point. But there are a few more things for him to consider:
- If a plaintiff’s claim is found to be meritless, there may be financial repercussions:
- Businesses may sue the plaintiff
- Businesses may collect attorney’s fees
- Attorney General may bring a civil penalty of up to $50,000
- Statute of limitations is 1 year after alleged COVID exposure, so better get a move on.
- Plaintiffs must include an affidavit from a medical professional (one that did not treat the plaintiff) to back up their claim.
It’s certainly not a given that this bill will pass, but if it does, it will create broad protections for businesses and create difficulties for individuals. Even Han Solo couldn’t like those odds.
StraightforWARD Legal Advice:
If you have any questions regarding Covid-19 business litigation, employers should contact Jennifer Ward at 215-647-6601 or jward@thewardlaw.com.