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South Dakota Latest State to Enact Virus Liability Shield Law

Feb. 18, 2021, 10:10 PM

South Dakota businesses, health-care providers, and others are largely shielded from lawsuits over Covid-19 exposure and deaths under legislation signed into law by Republican Gov. Kristi Noem.

The measure, HB 1046, bars lawsuits from employees, customers, or others claiming they were exposed to the disease at a particular business or premises, unless the person suing can prove the business owner intentionally exposed them to the virus.

The new law also sets a higher-than-usual legal bar for litigation related to Covid-19 against health-care providers and makers of health-care supplies, medications, and personal protective equipment.

The South Dakota law covers claims dating from Jan. 1, 2020, and extends through Dec. 31, 2022. Noem signed it Wednesday, after a 29-3 Senate vote on Feb. 8 that gave it final passage through the Republican-majority state legislature.

The state joins more than 15 others that have enacted liability shield laws that broadly limit pandemic-related lawsuits against all or most types of businesses, including Alabama and Montana, whose governors signed similar measures into law shortly before Noem.

Generally, workers’ compensation laws bar employees from suing their employers over job-related injuries or illnesses, with limited exceptions. However, South Dakota is one of the few states that doesn’t require employers to provide workers’ compensation.

The South Dakota liability shield measure also makes it unlikely employees could get approved for workers’ compensation benefits after contracting Covid-19 on the job, by stating that the legislation may not be interpreted to “deem COVID-19 an occupational disease. COVID-19 is not an occupational disease under state law.”

To contact the reporter on this story: Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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