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Duff: Will COVID Federal Civil Immunity Pre-Empt Cal/OSHA Rules?

By Michael C. Duff

Thursday, December 17, 2020 | 1

UPDATE: Some folks are telling me that liability immunity is being pulled from the table. I hope that is true, but let's just say I'm not taking this post down and won't be holding my breath, either.

Michael C. Duff

Michael C. Duff

It appears that one of the most draconian American tort immunity bills ever conceived is about to be foisted on states any minute now. But don’t worry — it will be in effect for only a year or until a government bureaucrat says the emergency is over. What could go wrong?

In essence, Washington/corporate-dictated tort immunity (in derogation of a historically state and local prerogative) will mean the “empty pre-emption” of state (and in many cases) federal liability with respect to all things COVID (and you can expect creative expansion of defenses to include a COVID connection; not unlike my time at the NLRB when every employer defense in late 2001 somehow invoked 9/11). 

Time does not permit me to do a line-by-line analysis of the immunity provisions (workers’ compensation has been completely exempted). For now, I want to focus on a very concrete question. A story in Wednesday's WorkCompCentral about California COVID-related workplace safety rules says:

Employers that don’t follow Cal/OSHA’s new rules may see escalating fines, from around $13,000 for a first violation to hundreds of thousands in penalties for willful and repeated disregard of approved safety measures.

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

According to the draft of the likely federal COVID immunity language that has been circulating, “a coronavirus exposure action in which liability may be imposed under a standard that is less stringent than a standard of gross negligence may not be filed or maintained in any federal, state or tribal court.” 

Moreover, the same section “pre-empts and supersedes any federal, state or tribal law, including statutes, regulations, rules, orders, proclamations or standards that are enacted, promulgated or established under common law, under which liability may be imposed in a coronavirus exposure action under a standard that is less stringent than a standard of gross negligence.”

On the other hand, excluded from the definition of “coronavirus exposure” or “coronavirus-related medical liability” actions, subject to the pre-emption described in the previous paragraph, is “a criminal, civil or administrative enforcement action brought by the federal government or any state, local or tribal government.”

To the extent Cal/OSHA penalties are imposed for other than “gross negligence,” you might think they are spared from pre-emption if imposed pursuant to state “administrative enforcement action.” But, as my administrative law students over the years would tell you, administrative orders are not self-enforcing; they must be enforced by a court. So the question becomes whether an agency’s application with a court for enforcement will survive pre-emption. 

Buried in that question is also a thorny abstention problem, since this bill badly wants to shunt all state liability claims into federal court rather transparently to ensure that they are summarily dismissed. Will federal courts issue injunctions to suspend state court enforcement of state administrative orders?

The argument here should be that exclusion of state enforcement actions from the definition of “coronavirus exposure” or “coronavirus-related medical liability” implicitly acknowledges that pre-emption 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 for student programs and external relations and is professor of law at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.


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