In recent months, at least a dozen states have provided immunity for businesses from exposure to lawsuits alleging COVID-19-related injuries. These protections were spurred by fears of lawsuits that employers may face when tasked with protecting workers while still moving forward with business operations in the face of the continuing pandemic. Thus far, however, lawsuits filed over COVID-19 workplace injuries have remained relatively low.
“While there have been concerns about a wave of COVID-19-related employer liability lawsuits, the predicted huge number of cases has failed to materialize,” said Pamela Wolf, J.D., Legal Analyst at Wolters Kluwer Legal & Regulatory U.S. “Some employers in certain states now have a level of protection from COVID-19 liability lawsuits, but how the courts will interpret these new limited immunity laws is still unknown.
“Given that the SAFE TO WORK Act, federal legislation that would provide limited liability for business that comply with certain guidance by federal, state, and local governments, has failed to advance or become part of a COVID-19 relief bill, we expect to see more states taking action. Unfortunately, the pandemic will likely continue at least for several more months, and the likelihood of federal liability protection in the near future seems remote.”
The following chart outlines state actions to limit the risk of businesses to liability for injuries related to COVID-19.
Date Signed into Law
Alabama Governor Kay Ivey issued a Proclamation under which businesses and other covered entities are not liable for COVID-19-related death, injury, or property damage unless it is shown by “clear and convincing evidence” that the death, injury, or property loss was caused by the covered entity’s wanton, reckless, willful, or intentional misconduct. Where there is liability, but no “serious physical injury,” the covered entity is only liable for “actual economic compensatory damages” (not non-economic or punitive damages). A person asserting a wrongful death claim is only entitled to punitive damages.
Executive Order 20-33
Arkansas Governor Asa Hutchinson issued an Executive Order that provides all businesses and their employees are immune from civil liability because of exposure to COVID-19. However, the immunity does not apply to willful, reckless or intentional misconduct. There is a presumption that the actions are not willful or reckless if the business owner substantially complies with public health directives.
Governor Kim Reynolds signed into law S.F. 2338, the “COVID-19 Response and Back-to-Business Limited Liability Act,” which provides limited liability to business owners. A person who possesses or is in control of a premises, including a tenant, lessee, or occupant of a premises, who directly or indirectly invites or permits an individual onto a premises, is not liable for civil damages for any injuries sustained from the individual’s exposure to COVID-19 unless the person who possesses or is in control of the premises:
There is also a safe harbor for compliance with regulations, executive orders, or public health guidance. A person is not liable for civil damages for any injuries sustained from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in substantial compliance or was consistent with any federal or state statute, regulation, order, or public health guidance related to COVID-19 that was applicable to the person or activity at issue at the time of the alleged exposure or potential exposure.
Signed into law by Kansas Governor Laura Kelly on June 8, H.B. 2016 creates the “COVID-19 Response and Reopening for Business Liability Protection Act.” A person, or agent of such person, conducting business in Kansas is immune from liability in a civil action for a COVID-19 claim if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the cause of action when the cause of action accrued. This protection expires on January 26, 2021 and applies retroactively to any cause of action accruing on or after March 12, 2020.
Under H.B. 826, signed by Louisiana Governor John Bel Edwards on June 13, no person or local or state government or political subdivision is liable for civil damages for injury or death resulting from exposure to COVID-19 in the course of, or through the performance of, a person’s business operations unless it is proven that the person, government, or political subdivision was not in substantial compliance with applicable COVID-19 procedures, and unless the damage was caused by gross negligence or wanton or reckless misconduct.
On August 11, Nevada Governor Steve Sisolak signed into law S.B. 4, which limits the civil liability of certain businesses conducted for profit, governmental entities, and private nonprofit organizations for personal injury or death resulting from exposure to COVID-19—if the business, governmental entity, or private nonprofit organization substantially complied with controlling health standards. This immunity does not apply where the business, governmental entity, or private nonprofit organization violated controlling health standards with gross negligence and the gross negligence was the proximate cause of the personal injury or death. Any complaint in a civil action must be pled with particularity. The court is required, as a matter of law, to determine substantial compliance with controlling health standards.
On July 2, North Carolina Governor Roy Cooper signed into law H.B. 118, which gives individuals and private, nonprofit, government, and other entities limited liability from claims arising from acts or omissions alleged to have resulted in COVID-19 infection that do not amount to gross negligence, willful or wanton conduct, or intentional wrongdoing. Individuals or entities who own or have in their possession, control, or custody a premises must provide reasonable notice of actions taken for the purpose of reducing the risk of COVID19 transmission to individuals who are present on the premises, and will not be held liable for the failure of any individual to comply with rules, policies, or guidelines contained in the required notice. This provision does not apply to premises owned by an individual, other than premises that are used in the operation of a sole proprietorship, or to claims before the Industrial Commission seeking benefits payable under the Workers’ Compensation Act, Article 1 of Chapter 97 of the General Statutes.
Signed by Ohio Governor Mike DeWine on September 14, H.B. 606 bars any action for damages for injury, death, or loss to person or property against any “person” (which includes a school, for-profit or nonprofit entity, governmental entity, religious entity, or state institution of higher education) when the civil cause of action is based, in whole or in part on “the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof,” unless it is established that the exposure to or transmission or contraction of virus or mutation was by:
Where the immunity provided in this section does not apply, no class action can be brought against any “person” alleging liability for damages for injury, death, or loss to person or property on a cause of action specified in this section.
A government order, recommendation, or guideline does not create, nor can it be construed as creating a duty of care upon any person that may be enforced in a cause of action, or that may create a new cause of action or substantive legal right against any person as to matters contained in the government order, recommendation, or guideline. There is a presumption that any such government order, recommendation, or guideline is not admissible as evidence that a duty of care, a new cause of action, or a substantive legal right has been established.
There are separate provisions for health care providers.
On May 21, Oklahoma Governor Kevin Stitt signed into law S.B. 1946, under which a person or agent of the person who conducts business in the state is not liable in a civil action for an injury from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in compliance or consistent with federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time of the alleged exposure. Where two or more sources of guidance are applicable to the conduct or risk at the time of the alleged exposure, there is no liability if the conduct is consistent with any applicable guidance.
S.B. 8002, signed into law by Governor Bill Lee on August 17, limits liability related to loss, damage, injury, or death due to COVID-19. In a claim against an individual or legal entity for loss, damage, injury, or death arising from COVID-19, the claimant must prove by clear and convincing evidence that the individual or legal entity “proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.” The new law does not create a cause of action or eliminate any required element of any existing cause of action. It also does not affect workers’ compensation claims. Further, it does not amend, repeal, alter, or affect any immunity or limitation of liability available under current law or contract.
Under S.B. 3007, signed by Utah Governor Gary Herbert on May 4, individuals, companies, and other covered entities are immune from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises they owned or operated or during an activity they managed, except where there is willful misconduct, or reckless or intentional infliction of harm. The liability does not apply to Utah’s Workers’ Compensation Act, Occupational Disease Act, Occupational Safety and Health Act, or Governmental Immunity Act of Utah.
Signed by Wyoming Governor Mark Gordon on May 20, S.F. 1002 provides that when a business or other covered entity in good faith follows the instructions of a state, city, town, or county health officer, or who acts in good faith in responding to the public health emergency, they are immune from any liability arising from complying with those instructions or acting in good faith. However, the immunity does not apply to acts or omissions constituting gross negligence or willful or wanton misconduct.
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