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October 26, 2020

US Senate Proposes SAFE TO WORK Act to Protect Schools

COVID-19-related lawsuits are trending upward as the economy continues to rebound from the devastating effects of this disease and as schools and other institutions across the country continue reopening. To combat the anticipated influx of cases, the US Senate is considering the Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy (SAFE TO WORK) Act, one of eight bills that comprise the Health, Economic Assistance, Liability Protection, and Schools (HEALS) Act.

The SAFE TO WORK Act aims to protect schools (including elementary through higher education institutions) from the trend of increasing lawsuits by providing liability protections and clarifying existing protections for products liability and personal injury claims. The SAFE TO WORK Act also provides recourse to ensure those acting in bad faith can be held responsible for grossly negligent COVID-19-related injuries.

Under the SAFE TO WORK Act, a school is not liable for COVID-19 exposure as long as it made reasonable efforts to comply with government-mandated guidelines and regulations at the time of the alleged exposure. Schools will have to make reasonable efforts to adhere to public-health guidelines without “gross negligence” or “intentional misconduct.” Absent mandatory standards, a school or organization may claim safe harbor if the school can demonstrate it followed some set of public-health guidance. The SAFE TO WORK Act also shields schools from citations by the Occupational Safety and Health Administration (OSHA). Under the act, employers who rely on government standards and guidance from organizations like the Centers for Disease Control and Prevention will not be cited by inspectors under OSHA’s general-duty clause.

If passed, the SAFE TO WORK Act would also provide temporary protection to schools from lawsuits in relation to COVID-19 testing. Although this shield would not preempt local liability reforms or disrupt workers’ compensation structures, the protections would supersede local statutes and regulations related to personal injury lawsuits alleging COVID-19-related illness or exposure. This proposal would also limit compensatory damages to economic losses as a result of COVID-19-related claims, provided the harm is not a result of “willful misconduct.”

The liability protections would cover claims from December 1, 2019, to October 2024. In addition to the liability shields proposed in this legislation, the bill would provide $105 billion in funding, with two-thirds of the money for schools that implement reopening plans.

Barclay Damon will continue to monitor the progress on federal and state liability protections for schools and other institutions during the COVID-19 pandemic.

If you have any questions regarding the content of this alert, please contact Janae Cummings, associate, at, or a member of the Torts & Products Liability Defense Practice Area.


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