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West Virginia Enacts Covid-19 Liability Shield, Gig Workers Law

March 19, 2021, 7:28 PM

West Virginia businesses will have immunity from liability lawsuits related to Covid-19 and more leeway to classify workers as independent contractors under two bills signed into law by Gov. Jim Justice.

The liability shield measure, SB 277, bars lawsuits against West Virginia businesses, health-care providers, nonprofits, schools, and other entities related to Covid-19 exposure, injury, or death—with an exception for claims springing from intentional conduct or actual malice. The new law takes effect immediately and is similar to legislation enacted in 20 other states during the pandemic.

Justice signed the bills into law on Friday. The state has recorded more than 135,600 confirmed cases and over 2,500 deaths since the onset of the contagion, according to Bloomberg data.

The Republican governor had requested the liability protections as a means of protecting businesses from a potential flood of lawsuits spurred by the pandemic, although a number of lawyers have observed that the flood of liability claims related to the virus hasn’t materialized.

The worker classification measure, SB 272, takes effect June 9 and establishes a set of flexible criteria that employers can use in determining their workers are independent contractors rather than employees.

The measure is similar to model legislation crafted by the American Legislative Exchange Council, or ALEC, as a conservative counterpoint to Democratic efforts to classify more gig workers as employees using the stricter “ABC test” that California enacted in 2019.

Making it easier for businesses to treat their workers as independent contractors under West Virginia law relieves them of obligations to provide worker’s compensation and unemployment insurance coverage. Under federal law and in some states, independent contractors also aren’t covered by various workplace protections such as minimum wage, overtime, and the right to form a union.

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

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

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