A short review of federal and Minnesota legislative proposals
By Courtney Ernston
The question of liability as it relates to contracting covid-19-related illness has been at the forefront of many state and federal discussions and legislation. The United States Senate has introduced the Safe to Work Act, which seeks to limit “coronavirus exposure action[s]” unless the individual or entity is “engaged in gross negligence or willful misconduct.”1 The Act, which was referred to the Committee on the Judiciary on July 27, 2020, also seeks to preempt any state laws that would offer greater recovery to a plaintiff in the action or create a lower standard for establishing liability, but would allow state law to provide greater protection for a defendant, limit damages, or limit liability.2
Proposed or enacted legislation
Several states have taken action, either through their legislatures or via executive order, to quell lawsuits arising from any potential exposure to covid-19 as a result of physical presence at a business.3 Minnesota is one of 12 states with legislation pending.4 The Minnesota bill would establish that an owner of a property or establishment owes no duty to persons on their premises to warn them of, or protect them from, the risks of covid-19, absent intentional or reckless exposure.5 The proposed bill has a retroactive application for causes of action accruing on or after March 13, 2020.6 It also removes liability so long as the business complied with any recommendations, policies, procedures, etc. issued by a federal, state, or local governmental agency.7 The bill specifically exempts claims made under workers’ compensation, so any potentially injured employee still has an available remedy if an employee is injured as a result of their employment.8 According to the Minnesota Department of Labor and Industry (DLI), there have been 2,818 covid-19 workers’ compensation claims reported through July 22, 2020, with 2,038 of those claims coming from employees in the health care sector.9
Employer protection ≠ Easy Street
While it appears that employer protections are being prioritized, it doesn’t mean that employers are off the hook entirely. It is still possible for liability to be pointed back at employers if they are not adequately prepared for the realities of current work conditions. That liability can be seriously narrowed with the small amount of effort that a well-organized preparedness plan requires.
But insulation from civil liability is not a blanket endorsement allowing businesses to ignore the precautions they have been asked or required to put in place. There are still several regulatory agencies that have investigated and will continue to investigate complaints and issue citations, where appropriate. As of August 3, 2020, for example, OSHA has received a total of 28,276 COVID-19 related complaints, 7,526 at the federal level and 20,750 at the state level.10 To date 19,593 have been closed and 8,683 remain open.11
The question that has not yet been answered is what type of citation and/or fine will result from a business’s failure to comply. The DLI has the power to issue citations, civil penalties, or closure orders for unsafe work environments.12 Regardless of any additional enforcement action that may be taken, what is clear is that employers still have an extremely high burden of complying with the myriad new laws and policies, including the preparedness plans,13 mask mandates,14 the FFCRA,15 the amendment to the FMLA,16 and more.
Should the Safe to Work Act pass prior to the Minnesota Legislature going back in session, the pending Minnesota legislation will likely be moot, since it contains language substantially similar to that of the Safe to Work Act.
COURTNEY ERNSTON is a partner and head of litigation at Minnesota Construction Law Services, where she represents contractors in disputes both large and small. She is actively involved in a number of organizations throughout the legal and construction community and loves working with her amazing team.
Notes
1 https://www.congress.gov/bill/116th-congress/senate-bill/4317/text#toc-id368E3064D88542E7A1FDE5C618B58155 , Sec. 3(4)(A)
2 https://www.congress.gov/bill/116th-congress/senate-bill/4317/text#toc-id368E3064D88542E7A1FDE5C618B58155 , Sec. 162(c)
3 “COVID-19 Liability Shield.” Ogletree Deakins, https://ogletree.com/app/uploads/covid-19/COVID-19-liability-shield-50-state-survey.pdf?Version=10 .
4https://www.revisor.mn.gov/bills/text.php?number=HF4664&session=ls91&version=latest&session_number=0&session_year=2020
5 Id. Sec. 3 Subd. 2
6 Id. Sec. 2 Subd. 2
7 Id. Sec. 4 Subd. 2
8 Id. Sec. 3 Subd. 3
9 Minnesota Department of Labor and Industry PowerPoint Presentation: COVID-19 Workers’ compensation claims statistics (7/30/2020) accessed via: https://www.dli.mn.gov/updates
10 https://www.osha.gov/enforcement/covid-19-data#summary_data
11 Id.
12 https://mn.gov/governor/assets/EO%2020-74%20Final_tcm1055-437539.pdf , Para. 7(b)
13 https://mn.gov/governor/assets/EO%2020-74%20Final_tcm1055-437539.pdf , Para. 7(e), “For Businesses: Safely Returning to Work.” MN Employment and Economic Development, https://mn.gov/deed/newscenter/covid/safework/business/ .
14 https://mn.gov/governor/assets/EO%2020-81%20Final%20Filed_tcm1055-441323.pdf
15 https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave
16 Id.