By Y. Peter Kang

Law360 (August 7, 2020, 7:14 PM EDT) -- Nearly two dozen Republican attorneys general have banded together to urge federal lawmakers to pass a liability shield for businesses in connection with worker and consumer COVID-19 injury suits.

The right-leaning coalition, led by Georgia Attorney General Chris Carr and joined by top state lawyers in Florida, Texas and 19 other states, sent a letter on Aug. 5 to Senate leaders asking them to adopt the Safe to Work Act as part of Senate Republicans' $1 trillion COVID-19 relief package floated on July 27.

The liability shield bill would impose significant hurdles for workers, customers and patients who want to sue businesses and health care providers over coronavirus-related injuries, which the bill's sponsor, Sen. John Cornyn, R-Texas, said were necessary to prevent the latter "from being sued into oblivion."

Under the bill, defendants in coronavirus-related personal injury and medical malpractice suits would be given a five-year "safe harbor" and such cases would fall under the jurisdiction of federal courts. The bill also contains a two-pronged requirement that plaintiffs must establish that a business was grossly negligent or engaged in willful misconduct and that it failed to make "reasonable efforts" to comply with applicable public health guidelines.

In addition, all such cases would be subject to a "clear-and-convincing" evidentiary standard and limitations on noneconomic damages such as pain and suffering.

"We believe this framework for federal pandemic liability protections will benefit all of our states and citizens as we continue working to slow the spread of COVID-19 and minimize the detrimental impact it has had on our state economies," the letter states.

The coalition said the bill is key to providing a "predictable legal environment" for reopening businesses.

"The COVID-19 pandemic has the potential to create a surge in frivolous civil litigation targeting well-intentioned businesses, educational institutions and non-profit organizations that have implemented and utilized applicable pandemic mitigation measures," the letter said.

Senate Majority Leader Mitch McConnell, R-Ky., had called the liability shield a top Republican priority and a "red line" issue. But Democratic lawmakers and other critics of the proposed immunity bill, including consumer and worker advocacy groups, have expressed concerns that the scope of the legislation is too broad and would effectively shut down coronavirus-related injury suits.

House Speaker Nancy Pelosi, D-Calif., has said the bill is "McConnell liability on steroids" and that the Senate leader "has taken it to a whole other place."

Critics have argued that creating a federal cause of action for such suits would usurp the authority of state courts and that many torts should remain within the province of state law and any given state's jurisprudence, which has evolved over time. In addition, at least a dozen states, most recently Georgia, have enacted laws that offer businesses a coronavirus liability shield.

The attorneys general acknowledged as much, but said "the need for a uniform national baseline of liability protection still exists."

"We are very encouraged by the introduction and consideration of this important framework for federal pandemic liability protections while still preserving states' autonomy to tailor protections based on each one's unique circumstances," the letter states.

Carr's letter was signed by the attorneys general of Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and West Virginia.

The group, excluding Oklahoma, sent a similar plea to congressional leaders in May.

--Editing by Bruce Goldman.

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