Tennessee joins a growing list of states passing liability protections around the country.
Ohio becomes the next state looking to find a balance between opening businesses and protecting business from liability relating to the ongoing pandemic. On September 14, 2020, Ohio Governor Mike DeWine signed House Bill 606 ("An Act to Grant Immunity to Essential Workers who Transmit COVID-19”), an act establishing two forms of qualified immunity from civil liability for claims relating to the coronavirus crisis and/or similar emergencies. Both houses of the Ohio General Assembly passed the act on September 2, 2020, over the objections of Democrats in the legislature. The Ohio House originally passed a version of the bill in late May, and the Senate passed a revised version of the bill in early June, but the bill languished for two months in the legislature before the House picked up the bill again to resolve differences between the two bills that had passed.
Immunity for Businesses
Section Two of the Act provides for broad immunity from civil actions for conduct from March 9, 2020 through September 30, 2021 if the injury underlying the cause of action is “is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV2, or any mutation thereof.” As with many of the liability shield statutes passed around the country, there is no immunity under the Act the immunity if “it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.”
Notably, however, the Act makes clear that government orders, guidelines, or recommendations cannot be construed as establishing a duty of care or of creating a new cause of action or substantive legal right relating to the matters described in the government guidance and such guidance would be presumptively inadmissible in a legal action for the purpose of attempting to establish a duty of care or substantive legal right. In findings published in the bill, the General Assembly explained these provisions by noting that “[n]othing in the Ohio Revised Code establishes duties upon businesses and premises owners to ensure that members of the general public will not be exposed to […] airborne germs and viruses,” and that “the General Assembly has not delegated to the Executive Branch of Ohio's government the authority or power to create new legal duties for businesses and premises owners.” Additionally, the Act bars class-action suits brought on the basis that a health care provider, business, government entity, or person causes the contraction or transmission of the coronavirus. By its terms, Section Two of the Act would appear to protect businesses and individuals that conduct their business in the ordinary manner from liability related to the transmission of the coronavirus. While the usual exceptions apply for reckless and intentional conduct, the General Assembly’s prohibition on the establishment of duties of care or subsequent legal rights on the basis of government guidance would seemingly eliminate the need for businesses to seek safe harbors through compliance with state and municipal guidance. This approach contrasts with the approach taken in other states, such as Kansas, Louisiana, and Massachusetts, where immunity from civil litigation has been premised upon compliance with government guidance.
Immunity for Health Care Providers
The Act, which is not solely limited to claims relating to the coronavirus, also immunizes health care providers who provide services as a result of a disaster or emergency from liability from professional discipline for tort liability for actions or omissions relating to the provision, withholding, or withdrawal of those services or from the provision, withholding, or withdrawal of service subject to an executive or director’s order. It also provides for exceptions from immunity for acts that constitute “reckless disregard for the consequences so as to affect the life or health of the patient or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought” and for acts and omissions that constitute “gross negligence.” Finally, the Act does not grant an immunity for “actions that are outside the skills, education, and training of the health care provider, unless the health care provider undertakes the action in good faith and in response to a lack of resources caused by a disaster or emergency.”
Ohio’s response highlights the tension between businesses, who seek the certainty to re-open with confidence and public health advocates, concerned that expansive immunity protections will encourage re-openings without appropriate attention taken to protecting the public.
Pillsbury continues to track this and other coronavirus immunity statutes as they are introduced and enacted in all states. The firm is closely monitoring and analyzing the global legal, economic, policy and industry impacts of COVID-19. For our latest insights, visit our COVID-19 and Economic Impact Resource Center.