Duff: Will COVID Federal Civil Immunity Pre-Empt Cal/OSHA Guidelines?| Employees Compensation Information

By Michael C. Duff

Thursday, December 17, 2020 | 28 | 0 | min read

TO UPDATE: Some people tell me that liability immunity is being pulled off the table. I hope this is true, but let’s just say I am not accepting this post and I am not holding my breath either.

Michael C. Duff

It seems that one of the most draconian American tort immunity bills ever devised is about to be forced upon states at any moment. But don’t worry – it will only be a year or until a government bureaucrat says the emergency is over. What could go wrong?

In essence, Washington / corporation-dictated immunity from tort (aside from a historically state and local prerogative) means the “empty prevention” of state (and in many cases) state liability in relation to all things COVID (and you can ) Expect a creative expansion of the defense to include a COVID link (similar to my time at the NLRB when every employer defense kind of called 9/11 in late 2001).

Time does not allow me to do a line-by-line analysis of the immunity provisions (employee compensation has been completely exempted). For now I want to focus on one very specific question. A story in WorkCompCentral on Wednesday about COVID-related health and safety rules in California reads:

Employers who fail to abide by Cal / OSHA’s new rules can face escalating fines, from around $ 13,000 for a first breach to hundreds of thousands of penalties for willful and repeated disregard of approved security measures.

The rules require employers to create and maintain proactive, site-specific plans to protect workers from the virus. Employers must also provide face coverings to workers and enforce social distancing guidelines set out in federal, state and local health guidelines.

According to the draft federal COVID immunity language likely in circulation, “No coronavirus exposure measure that is liable to a standard less stringent than a standard of gross negligence may not be filed or maintained in any state. State or Tribal Court. ”

In addition, the same section sets forth “any federal, state, or tribal law, including any statute, regulation, rule, ordinance, proclamation, or standard that is enacted, promulgated, or stipulated under general law and that requires liability in a coronavirus exposure measure under a Standard less stringent than gross negligence. “

On the other hand, the definition of “coronavirus exposure” or “coronavirus-related medical liability” excludes, subject to the pre-emptive decision described in the previous paragraph, “a criminal, civil or administrative enforcement measure of the federal government or a state, local or tribal government. “

To the extent that Cal / OSHA penalties are imposed on anything other than “gross negligence”, you might think that if they are imposed in accordance with state “regulatory enforcement” measures, they will be spared prevention. But, as my administrative law students would say over the years, administrative directives are not self-enforcing. They have to be enforced by a court. So the question arises as to whether an agency’s application to an enforcement court will survive prevention.

There is also a thorny abstention issue on this issue, as this bill urgently seeks to bring all state liability claims fairly transparently to federal court to ensure they are dismissed out of hand. Will federal courts issue orders to suspend enforcement of state administrative orders by the state court?

The argument here should be that the exclusion of government enforcement actions from the definition of “coronavirus exposure” or “coronavirus-related medical liability” implicitly recognizes that prevention applies only to individually filed liability actions and that California should be able to enforce its OSHA penalties in its own courts.

Michael C. Duff is Associate Dean of Student Programs and External Relations and Professor of Law at the University of Wyoming College of Law. This entry was republished with permission from the Blog of Professors for Employee Compensation Law.