In July 2020, the SAFE TO WORK Act (S. 4317) was introduced in Congress with the express purpose “to discourage insubstantial lawsuits related to COVID-19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief.” The bill did not pass before the 116th Congress expired. But the need for employer protection during the continuing uncertainty of the pandemic remains. Cue the state houses.
Sixteen states have already provided some form of employer protection from COVID-19 lawsuits for a host of different businesses. Currently, those states include Georgia, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Mississippi, Nevada, New Jersey, New York, North Carolina, Oklahoma, Tennessee, Utah, Wisconsin and Wyoming. As 2021 begins, state legislatures are convening and addressing practical challenges to employers caused by COVID-19, including whether more protection is needed in locations where some protection has already passed.
This article addresses one state, Florida, and its efforts to craft broad employer protection from COVID-19-related claims. While the Florida legislation is not yet law, some form of it is likely to pass during the 2021 legislative session. It may prove to be a model for other states seeking broad and comprehensive immunity from liability that can be decided in the early stages of litigation.
As filed, Florida Senate Bill 72 (and companion House Bill 7) recognizes the “threat of frivolous and potentially limitless civil liability, especially in the wake of a pandemic,” to cause businesses to react “in a manner detrimental to the state’s economy and residents.” To remedy this, the legislation proposes heightened standards of pleading and proof for any COVID-19-related lawsuit to survive a motion to dismiss and ultimately be litigated. Provisions include the following:
It is too soon to know whether the Florida law will pass or if other states will adopt similar legislation. But the need for broad employer protection is clear and the impetus for providing it is growing. We will continue to monitor state activity and provide further updates.