Cover Two
Feb 3, 2021

LEAD STORY

It’s game week, leading up to the championship of the National Football League on Sunday.  The Tampa Bay Buccaneers and the Kansas City Chiefs are going through the three phases of the game:  offense, defense, and special teams.  We’re breaking down our game film the same way with a look at proactive measures to expand protections to employees from the coronavirus, coordination of COVID-19 liability defenses, and a roster of specialty bills this week.

 

“OMAHA”

Nebraska lawmakers introduced legislation to make COVID-19 a compensable illness for essential workers.  The unicameral measure, L.B. 441, names 10 categories of workers, including first responders and health care workers, who would qualify for the presumption. An employer can rebut the presumption by “affirmatively” proving that the employee contracted COVID-19 outside of the workplace.  The bill also stipulates that “under no circumstances shall any COVID-19 case increase or adversely affect any employer's workers' compensation insurance premium, experience rating, or modification.”  The bill was referred to the Business and Labor Committee.  If passed, this novel Nebraska program would be administered through the Cornhusker State’s Department of Insurance.

 

OPEN UP THE PLAYBOOK

The U.S. Department of Labor announced that the Occupational Safety and Health Administration (OSHA) issued updated worker safety guidance.  This will help employers and employees implement a coronavirus prevention program and better identify risks which could lead to exposure and contraction. Last week, President Biden directed OSHA to release clear guidance for employers to help keep workers safe from COVID-19 exposure.  Entitled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” the guidance provides updated guidance and recommendations, outlines existing safety and health standards, and details key measures for limiting the spread of the coronavirus. It also provides guidance on the use of personal protective equipment, improving ventilation, and routine cleaning.

 

TURNOVER ON DOWNS

U.S. Rep. Jim Clyburn (D-SC), chairman of the House Select Subcommittee on the Coronavirus Crisis, is keeping up the pressure on OSHA.  Representative Clyburn announced that the committee will investigate the spread of COVID-19 in the nation’s food manufacturing facilities. In a first move, the committee issued investigatory letters to OSHA, requesting the agency turn over significant documents, including those that could shed light on how officials responded to COVID-19 outbreaks and complaints.

 

OFFSETTING PENALITIES

In related news, measures introduced in the Hawaii House and Senate would create an exception to workers’ compensation as the exclusive remedy for workplace injuries when employers fail to maintain adequate protections against COVID-19.  The bills would create a presumption that COVID-19 has been proximately caused by an employer's failure to maintain adequate workplace protections against exposure to the novel coronavirus. Let’s go down to the sidelines for a closer look at the defense.

 

Defensive Coordinator

PASSING SITUATION

The Indiana House of Representatives approved legislation that would protect businesses from COVID-19 related lawsuits. House Bill 1002 would shield businesses and individuals from coronavirus civil liability lawsuits except in cases of gross negligence, willful or wanton misconduct, or intentional misrepresentation that could be proven with “clear and convincing evidence.”  The legislation would protect entities including individuals, corporations, health care providers, post-secondary educational institutions, and local governments.  Under the bill, entities providing services without personal protective equipment in a PPE shortfall, providing services without access to adequate or reliable COVID-19 testing, or providing services with a staffing shortage as part of a “good faith” response to COVID-19 would not constitute actionable conduct.  The Montana House of Representatives passed a similar bill that would provide liability protections to the state’s businesses over exposure to COVID-19.  The bill’s passage is a precursor to Governor Greg Gianforte’s (R-MT) plan to lift a statewide mask mandate.

 

AN ALL OUT BLITZ

We are tracking a series of defensive measures around the country.  In Arizona, a bill that provides protection for businesses and others against frivolous COVID-19 lawsuits was introduced in the state senate. The bill, SB1377, provides protection from reckless litigation and COVID-19 lawsuits for businesses and others who act in “good faith” to protect their customers, clients, and patients from COVID-19.  In his State of the State address this week, Texas Governor Greg Abbott (R-TX) pushed state lawmakers to protect individuals and companies that opened businesses during the pandemic against coronavirus-related lawsuits.  And finally, Alabama lawmakers returned to Montgomery for the 2021 legislative session.  The top priority of the leadership is legislation to shield companies and others from civil liability during the COVID-19 pandemic.  We’re dropping back into coverage.

 

Making Our Way Around the Country

FLORIDA

Legislation seeking to end Florida’s no-fault auto insurance system advanced through the State Senate Banking and Insurance Committee.  Under the no-fault system, drivers are required to carry personal-injury protection, or PIP, coverage to help pay medical bills after accidents. Motorists are required to carry $10,000 in PIP coverage, an amount unchanged since 1979. The current proposal would mandate that motorists carry a minimum of $25,000 in bodily injury coverage for the injury or death of one person in an accident and $50,000 for injuries or deaths of two or more people. The committee also approved an amendment to the bill about bad-faith lawsuits, which creates “common-sense best practice standards” for the industry when handling third-party claims and provides standards for the third-party claimant to follow when making a demand for settlement.

 

OCCUPATIONAL LICENSURE

Ohio Governor Mike DeWine (R-OH) signed into law a measure that was originally aimed at giving flexibility to students to take the state’s CPA exam, but turned into an effort to reduce government regulation in terms of occupational licensing. The new law also reforms licenses in the areas of education, environmental protection, natural resource conservation, and various types of medical practices. Advocates for the measure urged temporary medical licensing reforms made during the COVID-19 pandemic be made permanent. The measure goes into effect April 8. 

 

WASHINGTON

Lawmakers in Washington State introduced Senate Bill 5062, which would provide Washingtonians with rights to determine what type of data is being collected by companies and to be able to review that data. The legislation, similar to California’s CCPA and the European Union’s GDPR, would apply to entities conducting business in Washington that control or process the data of at least 100,000 people. The rules would apply to businesses getting 25% or more of their gross revenue from the sale of personal data, and that process or control information on 25,000 or more customers.  The measure passed through the Senate Environment, Energy and Technology Committee, and will progress toward a Senate vote. 

 

WHEN CHECKOV SAW THE LONG WINTER

Back to our main story this week.  Even though we can expect another six weeks of winter, we plan to bask in this week’s televised tilt in sunny Tampa Bay.  If it feels a bit like Groundhog’s Day, it’s because the Kansas City Chiefs seek their second consecutive Lombardi Trophy.  On the other side of the field, the Tampa Bay Buccaneers are led by quarterback Tom Brady, who is making his 10th appearance in the big game.  Here are some good reminders from the CDC for anyone attending gatherings on Sunday. Until next week, stay safe, stay well, and stay connected. 

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