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States Take the Lead With Business Covid-19 Immunity Statutes

Oct. 23, 2020, 8:01 AM

Ohio on Sept. 14 joined multiple states in enacting broad legislation granting legal immunity from certain Covid-19 related claims. The other states include Georgia, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Oklahoma, Utah, and Wyoming.

In March, as the Covid-19 pandemic swept the country, several states responded by mandating the closure of businesses and limiting all but essential medical procedures. Later in the spring, states looked to reopen but with person-to-person transmission still occurring in communities, the potential liability of business owners was seen by some as a deterrent to full economic participation.

In the medical setting, meanwhile, the shifting public health guidelines and scientific theories regarding treatment raised concerns that health-care providers also could face legal liability for Covid-19 treatments that initially were considered acceptable but later found to be lacking.

Despite these widespread concerns, the federal government has been slow to enter this arena, acting so far primarily in the area of medical liability. On March 10, the secretary of Health and Human Services invoked the Public Readiness and Emergency Preparedness Act and declared Covid-19 to be a public health emergency. Doing so provides immunity to certain individuals and entities against claims of loss associated with the manufacture, distribution, administration, or use of certain medical countermeasures to Covid-19.

Congress followed suit on March 27 with the passage of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, providing limited immunity for volunteer health-care professionals during Covid-19 emergency response.

No federal laws, however, have been passed that specifically target potential liability stemming from the reopening of businesses, although one such bill has been introduced in the Senate. On July 27, Sen. John Cornyn (R-Texas) introduced S. 4317, the Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy Act, or SAFE TO WORK Act.

The act as drafted would restrict Covid-19-related liability for health-care providers and businesses. However, with no Democratic co-sponsors, its passage is unlikely, especially in the run-up to a highly contentious election.

State-Specific Nuances in Immunity Bills

For now, with no additional federal guidelines on the horizon, businesses and health-care providers, especially those operating in multiple states, will have to navigate the following state-specific nuances of the Covid-19 immunity bills.

Scope of Immunity

The unique immunity bills passed so far differ widely in scope. At one end of the spectrum is North Carolina’s House Bill 118 and House Bill 902, which limit liability for persons operating premises and community pools for the contraction of Covid-19 at those locations.

Toward the other end of the spectrum is Kansas’s Covid-19 Response and Reopening for Business Liability Protection Act, which provides legal immunity for health-care providers, business entities, adult care facilities, and product liability claims.

Duration

Just as the bills were enacted at different times, there is no uniformity to the duration of the allowed-for liability. Some bills, such as the Georgia Covid-19 Pandemic Business Safety Act, have set dates of expiration. Others, such as the Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act, have expirations tied to the end of the state’s Covid-19 state of emergency. Still others, such as Utah’s Senate Bill 3007, have no specified date of expiration.

Relationship to Local Public Health Guidance

Some bills, including Louisiana’s Senate Bill No. 508 providing immunity for owners, operators, contractors, and agents of restaurants, require a degree of compliance with local ordinances in order to take advantage of the offered immunity. Such jurisdictions will require a familiarity with local Covid-19 procedures.

Bases for Exclusion

Additionally, many of the statutes include criteria that would exclude a person from being eligible for immunity. In some states, this standard can vary depending upon the type of immunity sought.

For example, under Iowa’s Senate File 2338, immunity does not apply in situations where defendants are found to have engaged in behavior that goes beyond mere negligence. This includes premises owners who exhibit reckless disregard of a substantial and unnecessary risk, health-care providers who exhibit reckless or willful misconduct, and manufacturers of personal protective equipment who exhibit reckless disregard of a substantial and unnecessary risk or actual malice.

At the other end of the spectrum, Oklahoma’s Senate Bill No. 1946 incorporates no exclusionary criteria.

Ohio Passes Good Samaritan Expansion Bill

Effective Dec. 13 and applicable to potential claims arising between March 9, 2020, and Sept. 30, 2021, Ohio’s Good Samaritan Expansion Bill provides temporary immunity for health-care providers from both tort actions and in professional disciplinary actions and temporary immunity for persons, including business entities, from general tort actions.

The immunity applies to any alleged injuries based at least in part on exposure to Covid-19. The Ohio statute explicitly states that government orders, recommendations, and guidelines do not create a duty of care and are not admissible as evidence that a duty of care has been established. Immunity does not extend to situations where the defendant’s actions demonstrated reckless disregard, intentional misconduct, or willful or wanton misconduct. Even in those instances, the law bars any class actions.

With coronavirus infection rates appearing to rise once again and Washington gridlocked on passing even a Covid-19 stimulus package, the prospects of any legal immunity legislation gaining traction appear dim at this point. Thus businesses will continue to need to look to the states for protections against the risks they face as they reopen to a wary public.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Erica James is counsel at Tucker Ellis LLP who applies her medical knowledge and training as a physician to advise and defend clients in the pharmaceutical, medical device, and health care industries. Her health care clients include physicians, nurses, hospitals, and dialysis centers.

Raymond Krncevic is counsel at Tucker Ellis LLP who advises health-care clients on risk and regulatory matters and represents them in litigation, arbitration, and administrative proceedings. His prior experience includes leading the in-house litigation department of a major health-care system and serving as the chief legal and policy adviser to a U.S. senator.

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