ILMA Compoundings - September 2020 - 33

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Dapraphos.™ A name you can trust. Dapraphos™
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pending lawsuits are focusing on
alleged incorrect application of these
laws. It is important for your HR
team to be well-versed on these laws.
Employers, including ILMA
members, should not feel comfortable
sticking with their normal practices.
They should instead adapt their
organizations to the challenges raised
by the current state of uncertainty.
This includes employment compliance
efforts, as well as litigation defense
measures. You should coordinate with
your employment counsel to proactively address the current climate.
The lawsuits have sparked debate
over whether businesses, especially
those that have remained open
throughout the lockdowns, should be
protected against these types of lawsuits
during the COVID-19 pandemic.
Congress currently is considering
whether to include employer liability
protections in its next coronavirus
relief package, and ILMA is working to
secure such protections for its members.
Senate Republicans included coronavirus-related liability protections

T H E D I F F E R E N C E I S C H E M I S T R Y. ª

in a proposal they introduced at the
end of July. The draft bill, if enacted,
would implement through 2024 the
protections for businesses if their
workers have "an actual, alleged,
feared or potential exposure to
coronavirus." The protections would
apply and would provide immunity
to employers from legal claims if
the businesses made "reasonable
efforts" to comply with the Centers
for Disease Control and Prevention,
the Occupational Safety and Health
Administration and other government
guidelines. The draft bill also would
require all coronavirus-related liability
cases to be heard in the federal courts.
Critics of the measure contend that
the federal courts would favor businesses over employees.
The Senate Republicans' draft bill has
some other interesting provisions. It
would also cap punitive damages and
give employers the right to countersue
for allegations they deem "meritless,"
and the Department of Justice would be
authorized to sue attorneys who exhibit
a "pattern" of coronavirus lawsuits.

Whether a liability protection
measure can make it from Capitol
Hill to President Donald Trump's
desk remains to be seen, even with
the efforts of ILMA and other
business groups. The legal system
is in uncharted waters on so many
aspects of the COVID-19 pandemic,
and there is no playbook to predict
how the courts will dispose of the
lawsuits, including the workers'
compensation bar I discussed earlier.
With no significant protections for
businesses limiting liability for labor
and employment claims related to
COVID-19, employers, including
ILMA members, are best served by
taking good-faith actions to protect
their workforces and implementing
and enforcing policies and protocols
suited to the specific needs of the
company.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.

33
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ILMA Compoundings - September 2020

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