SAFE TO WORK Act

II 116TH CONGRESS 2D SESSION S. 4317 To lessen the burdens on interstate commerce by discouraging insubstantial lawsuits relating to COVID–19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief. IN THE SENATE OF THE UNITED STATES JULY 27, 2020 Mr. CORNYN (for himself and Mr. MCCONNELL) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To lessen the burdens on interstate commerce by discour- aging insubstantial lawsuits relating to COVID–19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Safeguarding America’s Frontline Employees To Offer 5 Work Opportunities Required to Kickstart the Economy 6 Act’’ or the ‘‘SAFE TO WORK Act’’. 7 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4317 IS (b) TABLE OF CONTENTS.—The table of contents for 1 this Act is as follows: 2 Sec. 1. Short title; table of contents. Sec. 2. Findings and purposes. Sec. 3. Definitions. TITLE I—LIABILITY RELIEF Subtitle A—Liability Limitations for Individuals and Entities Engaged in Businesses, Services, Activities, or Accommodations Sec. 121. Application of subtitle. Sec. 122. Liability; safe harbor. Subtitle B—Liability Limitations for Health Care Providers Sec. 141. Application of subtitle. Sec. 142. Liability for health care professionals and health care facilities during coronavirus public health emergency. Subtitle C—Substantive and Procedural Provisions for Coronavirus-related Actions Generally Sec. 161. Jurisdiction. Sec. 162. Limitations on suits. Sec. 163. Procedures for suit in district courts of the United States. Sec. 164. Demand letters; cause of action. Subtitle D—Relation to Labor and Employment Laws Sec. 181. Limitation on violations under specific laws. Sec. 182. Liability for conducting testing at workplace. Sec. 183. Joint employment and independent contracting. Sec. 184. Exclusion of certain notification requirements as a result of the COVID–19 public health emergency. TITLE II—PRODUCTS Sec. 201. Applicability of the targeted liability protections for pandemic and epidemic products and security countermeasures with respect to COVID–19. TITLE III—GENERAL PROVISIONS Sec. 301. Severability. SEC. 2. FINDINGS AND PURPOSES. 3 (a) FINDINGS.—Congress finds the following: 4 (1) The SARS–CoV–2 virus that originated in 5 China and causes the disease COVID–19 has caused 6 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4317 IS untold misery and devastation throughout the world, 1 including in the United States. 2 (2) For months, frontline health care workers 3 and health care facilities have fought the virus with 4 courage and resolve. They did so at first with very 5 little information about how to treat the virus and 6 developed strategies to save lives of the people of the 7 United States in real time. They risked their per- 8 sonal health and wellbeing to protect and treat their 9 patients. 10 (3) Businesses in the United States kicked into 11 action to produce and procure personal protective 12 equipment, such as masks, gloves, face shields, and 13 hand sanitizer, and other necessary medical supplies, 14 such as ventilators, at unprecedented rates. 15 (4) To halt the spread of the disease, State and 16 local governments took drastic measures. They shut 17 down small and large businesses, schools, colleges 18 and universities, religious, philanthropic and other 19 nonprofit institutions, and local government agen- 20 cies. They ordered people to remain in their homes. 21 (5) This standstill was needed to slow the 22 spread of the virus. But it devastated the economy 23 of the United States. The sum of hundreds of local- 24 level and State-level decisions to close nearly every 25 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4317 IS space in which people might gather brought inter- 1 state commerce nearly to a halt. 2 (6) This halt led to the loss of millions of jobs. 3 These lost jobs were not a natural consequence of 4 the economic environment, but rather the result of 5 a drastic, though temporary, response to the unprec- 6 edented nature of this global pandemic. 7 (7) Congress passed a series of statutes to ad- 8 dress the health care and economic crises—the 9 Coronavirus Preparedness and Response Supple- 10 mental Appropriations Act, 2020 (Public Law 116– 11 123; 134 Stat. 146), the Families First Coronavirus 12 Response Act (Public Law 116–127; 134 Stat. 178), 13 the Coronavirus Aid, Relief, and Economic Security 14 Act or the CARES Act (Public Law 116–136), and 15 the Paycheck Protection Program and Health Care 16 Enhancement Act (Public Law 116–139; 134 Stat. 17 620). In these laws Congress exercised its power 18 under the Commerce and Spending Clauses of the 19 Constitution of the United States to direct trillions 20 of taxpayer dollars toward efforts to aid workers, 21 businesses, State and local governments, health care 22 workers, and patients. 23 (8) This legislation provided short-term insula- 24 tion from the worst of the economic storm, but these 25 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4317 IS laws alone cannot protect the United States from 1 further devastation. Only reopening the economy so 2 that workers can get back to work and students can 3 get back to school can accomplish that goal. 4 (9) The Constitution of the United States spe- 5 cifically enumerates the legislative powers of Con- 6 gress. One of those powers is the regulation of inter- 7 state commerce. The Government is not a substitute 8 for the economy, but it has the authority and the 9 duty to act when interstate commerce is threatened 10 and damaged. As applied to the present crisis, Con- 11 gress can deploy its power over interstate commerce 12 to promote a prudent reopening of businesses and 13 other organizations that serve as the foundation and 14 backbone of the national economy and of commerce 15 among the States. These include small and large 16 businesses, schools (which are substantial employers 17 in their own right and provide necessary services to 18 enable parents and other caregivers to return to 19 work), colleges and universities (which are substan- 20 tial employers and supply the interstate market for 21 higher-education services), religious, philanthropic 22 and other nonprofit institutions (which are substan- 23 tial employers and provide necessary services to their 24 communities), and local government agencies. 25 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4317 IS (10) Congress must also ensure that the Na- 1 tion’s health care workers and health care facilities 2 are able to act fully to defeat the virus. 3 (11) Congress must also safeguard its invest- 4 ment of taxpayer dollars under the CARES Act and 5 other coronavirus legislation. Congress must ensure 6 that those funds are used to help businesses and 7 workers survive and recover from the economic cri- 8 sis, and to help health care workers and health care 9 facilities defeat the virus. CARES Act funds cannot 10 be diverted from these important purposes to line 11 the pockets of the trial bar. 12 (12) One of the chief impediments to the con- 13 tinued flow of interstate commerce as this public- 14 health crisis has unfolded is the risk of litigation. 15 Small and large businesses, schools, colleges and 16 universities, religious, philanthropic and other non- 17 profit institutions, and local government agencies 18 confront the risk of a tidal wave of lawsuits accusing 19 them of exposing employees, customers, students, 20 and worshipers to coronavirus. Health care workers 21 face the threat of lawsuits arising from their efforts 22 to fight the virus. 23 (13) They confront this litigation risk even as 24 they work tirelessly to comply with the coronavirus 25 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4317 IS guidance, rules, and regulations issued by local gov- 1 ernments, State governments, and the Federal Gov- 2 ernment. They confront this risk notwithstanding 3 equipment and staffing shortages. And they confront 4 this risk while also grappling with constantly chang- 5 ing information on how best to protect employees, 6 customers, students, and worshipers from the virus, 7 and how best to treat it. 8 (14) These lawsuits pose a substantial risk to 9 interstate commerce because they threaten to keep 10 small and large businesses, schools, colleges and uni- 11 versities, religious, philanthropic and other nonprofit 12 institutions, and local government agencies from re- 13 opening for fear of expensive litigation that might 14 prove to be meritless. These lawsuits further threat- 15 en to undermine the Nation’s fight against the virus 16 by exposing our health care workers and health care 17 facilities to liability for difficult medical decisions 18 they have made under trying and uncertain cir- 19 cumstances. 20 (15) These lawsuits also risk diverting taxpayer 21 money provided under the CARES Act and other 22 coronavirus legislation from its intended purposes to 23 the pockets of opportunistic trial lawyers. 24 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4317 IS (16) This risk is not purely local. It is nec- 1 essarily national in scale. A patchwork of local and 2 State rules governing liability in coronavirus-related 3 lawsuits creates tremendous unpredictability for ev- 4 eryone participating in interstate commerce and acts 5 as a significant drag on national recovery. The ag- 6 gregation of each individual potential liability risk 7 poses a substantial and unprecedented threat to 8 interstate commerce. 9 (17) The accumulated economic risks for these 10 potential defendants directly and substantially af- 11 fects interstate commerce. Individuals and entities 12 potentially subject to coronavirus-related liability will 13 structure their decisionmaking to avoid that liability. 14 Small and large businesses, schools, colleges and 15 universities, religious, philanthropic and other non- 16 profit institutions, and local government agencies 17 may decline to reopen because of the risk of litiga- 18 tion. They may limit their output or engagement 19 with customers and communities to avoid the risk of 20 litigation. These individual economic decisions sub- 21 stantially affect interstate commerce because, as a 22 whole, they will prevent the free and fair exchange 23 of goods and services across State lines. Such eco- 24 nomic activity that, individually and in the aggre- 25 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4317 IS gate, substantially affects interstate commerce is 1 precisely the sort of conduct that should be subject 2 to congressional regulation. 3 (18) Lawsuits against health care workers and 4 facilities pose a similarly dangerous risk to interstate 5 commerce. Interstate commerce will not truly re- 6 bound from this crisis until the virus is defeated, 7 and that will not happen unless health care workers 8 and facilities are free to combat vigorously the virus 9 and treat patients with coronavirus and those other- 10 wise impacted by the response to coronavirus. 11 (19) Subjecting health care workers and facili- 12 ties to onerous litigation even as they have done 13 their level best to combat a virus about which very 14 little was known when it arrived in the United 15 States would divert important health care resources 16 from hospitals and providers to courtrooms. 17 (20) Such a diversion would substantially affect 18 interstate commerce by degrading the national ca- 19 pacity for combating the virus and saving patients, 20 thereby substantially elongating the period before 21 interstate commerce could fully re-engage. 22 (21) Congress also has the authority to deter- 23 mine the jurisdiction of the courts of the United 24 States, to set the standards for causes of action they 25 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4317 IS can hear, and to establish the rules by which those 1 causes of action should proceed. Congress therefore 2 must act to set rules governing liability in 3 coronavirus-related lawsuits. 4 (22) These rules necessarily must be temporary 5 and carefully tailored to the interstate crisis caused 6 by the coronavirus pandemic. They must extend no 7 further than necessary to meet this uniquely na- 8 tional crisis for which a patchwork of State and local 9 tort laws are ill-suited. 10 (23) Because of the national scope of the eco- 11 nomic and health care dangers posed by the risks of 12 coronavirus-related lawsuits, establishing temporary 13 rules governing liability for certain coronavirus-re- 14 lated tort claims is a necessary and proper means of 15 carrying into execution Congress’s power to regulate 16 commerce among the several States. 17 (24) Because Congress must safeguard the in- 18 vestment of taxpayer dollars it made in the CARES 19 Act and other coronavirus legislation, and ensure 20 that they are used for their intended purposes and 21 not diverted for other purposes, establishing tem- 22 porary rules governing liability for certain 23 coronavirus-related tort claims is a necessary and 24 proper means of carrying into execution Congress’s 25 VerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4317 IS power to provide for the general welfare of the 1 United States. 2 (b) PURPOSES.—Pursuant to the powers delegated to 3 Congress by article I, section 8, clauses 1, 3, 9, and 18, 4 and article III, section 2, clause 1 [Text truncated for display. Full text available on Congress.gov.]