Alabama

Overview: Governor Ivey issued an emergency proclamation on May 8, 2020 [8th Supplemental State of Emergency: Coronavirus (COVID-19)].  The proclamation provides immunity from civil liability to all businesses, individuals and health care providers for any injury, death or property damage arising from or related to a COVID-19 transmission or covered response activity, unless a claimant can show by clear and convincing evidence that the injury was caused by wanton, willful, or intentional misconduct.  In all cases where no “serious physical injury” is sustained, the proclamation further reduces liability to purely economic compensatory damages.

On July 21, 2020, Governor Ivey added her signature to a letter from 21 state governors to Congressional leadership, calling for “common sense” legislation to provide legal protections for healthcare workers and businesses during the COVID-19 pandemic.

Businesses Covered: "Business, health care provider, or other covered entity" means an individual, partnership, association, corporation, health care provider, other business entity or organization, or any agency or instrumentality of the State of Alabama, including any university or public institution of higher education in the State of Alabama, whether any such individual or entity is for profit or not for profit, including its directors, officers, trustees, managers, members, employees, volunteers, and agents.

Key Terms:

• Liability protections. A business, health care provider, or other covered entity shall be immune from liability related to COVID-19, unless a claimant shows by clear and convincing evidence that the damage was caused by the wanton, reckless, willful, or intentional misconduct.
• Limitations on damages. Where liability is established but no serious physical injury has occurred, liability shall be limited to actual economic compensatory damages only.  In the event of a wrongful death claim, punitive damages shall be the exclusive remedy available.
• "Serious physical injury" means a death or an injury that requires either in-patient hospitalization of at least 48 hours, permanent impairment of a bodily function, or permanent damage to a body structure.

Exceptions/Waivers:

• The proclamation does not affect any individual’s rights to receive benefits to which they would otherwise be entitled under the Alabama Emergency Management Act or the Worker’s Compensation Act.
• An exception and separate standard of care is provided for all covered causes of action that accrued before May 8, 2020, in the event that a court holds that the proclamation does not apply to such claims.  In such cases, claimants can only recover for non-wanton, non-willful, or non-intentional causes of action if they can demonstrate by clear and convincing evidence that the defendant “did not reasonably attempt to comply with the then applicable public health guidance.”

Notes:  

• Effective from March 13, 2020 “until the State COVID-19 public health emergency is terminated.”
• The immunity provided by this proclamation is in addition to any other defenses and rights that would be available to covered entities under existing law.

Alaska

Overview: Governor Dunleavy signed SB 241 into law on May 18, 2020. The law primarily protects health care providers. Under the law, a health care provider is not liable for taking an action based on an order from the state’s health department. Manufacturers of locally produced PPE are protected from most tort liability. There are no broader liability protections in Alaska.

Businesses Covered: 

• Health care providers who take action based on an order related to COVID-19 are not liable for civil damages as a result of those actions.
• Manufacturers of PPE are not liable for civil damages resulting from the injury or death of a user of the PPE if the manufacturer acted in good faith to respond to the COVID-19 pandemic.

Key Terms:

• Section 4(c): “Except as provided in (d) of this section, a public health agent or health care provider who takes action based on a standing order issued by the chief medical officer is not liable for civil damages resulting from an act or omission in implementing the standing order.”  NOTE:  The Chief Medical Officer of Alaska is Dr. Anne Zink. The standing orders issued by Dr. Zink related to COVID-19 are found here.
• Section 32(a):  “a health care provider or manufacturer of personal protective equipment is not liable for civil damages resulting from an act or omission in issuing, providing, or manufacturing personal protective equipment in the event of injury or death to the user of the personal protective equipment if the personal protective equipment was issued, provided, or manufactured in good faith to respond to the COVID-19 public health disaster emergency.”

Exceptions/Waivers: The law does not exempt businesses or healthcare providers from liability for gross negligence, recklessness or intentional misconduct.

Notes: According to news reports, the amendment extending liability protection to manufacturers of PPE was intended to protect Alaskan manufacturers so that healthcare providers would buy local PPE.  However, there is nothing in the final law that limits liability to Alaskan manufacturers.

Arizona

Overview: On May 21, 2020, the Arizona House passed House Bill 2912.  The proposed bill limits enforcement actions and civil liability during a public health emergency.  Section 2 of the proposed bill provides immunity from civil liability to schools, churches and most businesses.    

Businesses Covered: 

• Schools, which includes a public or charter school as defined in section 15-101, Arizona Revised Statutes, a public or private preschool, a private school that provides instruction to students in any combination of kindergarten programs and grades one through twelve, a university under the jurisdiction of the Arizona board of regents, a community college as defined in section 15-1401, Arizona Revised Statutes, an accredited private postsecondary institution and a vocational program as defined in section 15-1831, Arizona Revised Statutes, or a vocational education program offered pursuant to section 15‑782.02, Arizona Revised Statutes;
• Churches;
• Religious institutions;
• Nonprofit organization; and
• Person, including a person who owns or operates a business, corporation, limited liability company, church, religious institution or nonprofit organization in this state.

Key Terms: The businesses covered are “not liable to a person who contracts COVID-19 during the state of emergency or before April 1, 2021, whichever is later, including after entering and remaining on the premises of the [businesses covered]”

Exceptions/Waivers: The immunity does not apply if the covered business “acted with gross negligence.”

Notes: The bill’s fate remains unclear, given that the Arizona Senate adjourned after this bill was transmitted. Opponents of the bill contend that it may violate the state Constitution, which prohibits laws limiting victims’ ability to sue for damages. 

Arkansas

Overview: On April 14, 2020, Governor Hutchinson issued EO 20-18, which provides immunity from liability for healthcare workers for actions taken in the course of responding to COVID-19. 

Businesses Covered: Physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered nurses, and licensed practical nurses who are responding to COVID-19.

Key Terms: “A suspension of Ark. Code Ann. § 12-75-103(7)(C) [defining “Emergency Responders” in the Arkansas Emergency Services Act, which governs liability for emergency responders], to the extent necessary to provide immunity from liability to the following emergency responders, whether employed by the State or Federal Government, a private entity, or non-profit entity, for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak or the implementation of measures to control the causes of the COVID-19 epidemic.”

Exceptions/Waivers: “A grant of immunity from liability under Section 4 of this Order will not be extended to an emergency responder, who as a result of his or her action or omission, causes an injury or death due to:  (a) acting outside the scope of his or her practice unless he or she has been redeployed as a result of Section 3(d) of this order; or (b) acting in gross negligence, willful misconduct, or bad faith.”

Notes: On May 19, the Arkansas Senate Republicans formally asked Governor Hutchinson to extend liability protections to businesses.

California

Overview: On June 30 2020, California Assembly Bill 1759 was re-referred to the Committee on Rules. The bill immunizes institutions of higher education from liability related to COVID-19 injuries.

Businesses Covered: Public and independent institutions of higher education, and their officers, employees, and governing bodies.

Key Terms: The institutions covered are “exempt” from “monetary liability and damages for injury relating to COVID-19 infection, any condition in existence because of the COVID-19 pandemic, or any act or omission by those institutions, their officers, their employees, or their governing bodies in response to the COVID-19 pandemic.”

Exceptions/Waivers: The immunity does not apply to “a claim for damages caused by intentional misconduct, wanton or reckless misconduct, gross negligence, or willful and wanton negligence” if both of the following conditions exist: (1) “[t]he alleged negligence or misconduct is proven by clear and convincing evidence to have resulted in the transmission of COVID-19 that led to the injury, emotional distress, damage, death of a person, or economic loss”; and (2) “[t]he action is not brought pursuant to Section 382 of the Code of Civil Procedure.”

Colorado

Overview: On November 30, 2020, in an Extraordinary Session, Colorado Senate Bill 20B-011, was introduced. This bill establishes immunity from civil liability for small businesses for any act or omission that results in exposure, loss, damage, injury, or death arising out of COVID-19.

Businesses Covered: A “small business” is defined as a “non-profit or for-profit business with fewer than fifty employees”. 

Key Terms: The small business is ‘immune from civil liability for any act or omission that results in exposure, loss, damage, injury, or death arising out of COVID-19”.

Exceptions/Waivers: The immunity applies only if the small business attempted in good faith to comply with applicable guidelines. The immunity does not apply for “exposure, loss, damage, injury, or death” caused by “gross negligence or a willful and wanton act or omission” of the small business.

Notes: On November 30, 2020, the Senate Finance Committee voted to postpone Senate Bill 20B-011 indefinitely using a reversal of the previous roll call. 

Connecticut

Overview: On April 5, 2020 and April 7, 2020, Governor Lamont issued EO 7U and EO 7V, respectively, which provided liability protections for certain healthcare providers, including hospitals and nursing homes, in responding to COVID-19. It also protects medical providers from lawsuits about shortages of PPE and other medical supplies.

Businesses Covered: 

• Hospitals;
• Nursing homes; and
• Other healthcare facilities.

Key Terms: “[A]ny health care professional or health care facility shall be immune from suit for civil liability for any injury or death alleged to have been sustained because of the individual’s or health care facility’s acts or omissions undertaken in good faith while providing health care services in support of the State’s COVID-19 response, including but not limited to acts or omissions undertaken because of a lack of resources, attributable to the COVID-19 pandemic, that renders the health care professional or health care facility unable to provide the level or manner of care that otherwise would have been required in the absence of the COVID-19 pandemic.”

Exceptions/Waivers: “Such immunity shall not extend to acts or omissions that constitute a crime, fraud, malice, gross negligence, willful misconduct, or would otherwise constitute a false claim or prohibited act pursuant to Section 4-275 et seq. of the Connecticut General Statutes.”

Delaware

Overview: Pursuant to 20 Del. C. § 3129, qualified medical personnel engaged in emergency or disaster relief operations and activities shall not be liable for the death of or any injury to persons, or damage to property, as a result of such relief operations and activities.

Businesses Covered: 

• Qualified medical personnel engaged in emergency or disaster relief operations and activities
• Any volunteers providing medical services pursuant to Gov. Carney’s twelfth modification to the declaration of a state of emergency.

Key Terms: Qualified medical personnel shall not be liable for the death of or any injury to persons, or damage to property, as a result of the provision of emergency or disaster relief operations and activities.

Exceptions/Waivers: Excludes intentional conduct and willful or wanton disregard of the rights of others resulting in death, injury or damages.

District of Columbia

Overview: With respect to employers and businesses generally, the ReOpen DC Advisory Group made the following recommendation to Mayor Bowser on May 21, 2020:

• Liability guidance for employers
• As we think through a new normal and manage risks in reopening, DC must determine what flexibilities are needed to account for new scenarios that raise liability issues.

With respect to health care providers and others responding to the ongoing emergency, on April 20, the D.C. Council passed the COVID-19 Response Supplemental Emergency Amendment Act of 2020 (the “Act”) amending the COVID-19 Response Emergency Amendment Act of 2020.  The Act addresses, among other things, limitations on liability for certain persons performing tasks relating to the COVID-19 pandemic.  The Act applies as of March 11, 2020 and remains in effect until July 9, 2020.   

Businesses Covered: 

• a healthcare provider, first responder, or volunteer who renders care or treatment to a potential, suspected, or diagnosed individual with COVID-19
• a donor of time, professional services, equipment, or supplies for the benefit of persons or entities providing care or treatment for COVID-19 to a suspected or diagnosed individual with COVID-19, or care for the family members of such individuals
• a contractor or subcontractor on a District government contract that has contracted to provide health care services or human care services (consistent with section 104(37) to the Procurement Practices Reform Act of 2010, effective April 8, 2011 (D.C. Law 18-371; D.C. Official Code § 2-351.04(37)) related to a declared public health emergency related to the District government's COVID-19 response
• a party involved in the healthcare process at the request of a health-care facility or the District government, and acting within the scope of the provider’s employment or organization’s purpose, or contractual or voluntary service, even if outside the provider’s professional scope of practice, state of licensure, or with an expired license, who, in relation to combatting COVID-19, prescribes or dispenses medicines for off-label use, utilizes equipment or supplies outside the product’s normal use, or provides direct or ancillary health-care services or products.

Key Terms: Any healthcare provider, first responder, volunteer, or District government contractor or subcontractor of a District government contractor (“provider”), including a party involved in the healthcare process at the request of a health-care facility or the District government, and acting within the scope of the provider's employment or organization's purpose, or contractual or voluntary service, even if outside the provider's professional scope of practice, state of licensure, or with an expired license are exempt from civil liability for actions taken relating to COVID-19.

Exceptions/Waivers:

• Acts or omissions that constitute a crime, actual fraud, actual malice, recklessness, breach of contract, gross negligence, or willful misconduct;
• Acts or omissions unrelated to direct patient care; provided, that a contractor or subcontractor shall not be liable for damages for any act or omission alleged to have caused an individual to contract COVID-19.

Florida

Overview: The Florida state legislature is currently considering two similar bills in the State House of Representatives (HB 7) and State Senate (SB 72) to provide sweeping liability protections for businesses and other covered entities that make a “good faith effort” to comply with federal, state and local health guidelines.  Notably, health care providers are specifically excluded from the proposed legislation. 

The House Bill recently advanced to a final committee vote and is expected to reach the House floor in the near future.  Governor DeSantis has previously expressed his willingness to enact such legislation.

Businesses Covered: Businesses, non-profit organizations, schools, religious institutions, and government entities.

Key Terms: 

• Any complaint alleging a COVID-19 exposure claim must be pled with particularity, and accompanied by a physician affidavit that attests that a plaintiff’s COVID-19 related damages are a result of the defendant’s acts or omissions. Failure to do so will result in dismissal with prejudice.
• Plaintiffs have the burden of proof to show that defendants did not make a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.
• In cases where the defendant is found not to have made a “good faith effort,” the plaintiff must still show “at least gross negligence proven by clear and convincing evidence.
• A civil action for a COVID-19 related claim must be commenced within 1 year after the cause of action accrues, or 1 year after the effective date of the legislation (whichever is later).

Exceptions/Waivers: The proposed legislation specifically excludes healthcare providers from its definition of covered entities.

Notes: The proposed legislation states that it will apply retroactively, except in all civil actions against a particularly named defendant that were commenced prior to the effective date of the Act.

Georgia

Overview: On April 20, 2020, Governor Kemp issued an executive order laying out requirements for certain businesses in the state to reopen.  The governor noted that OCGA 38-3-51(j), which gives the governor the right to issue executive orders, shields businesses acting in accordance with that order from liability to any other person or business.  In other words, if businesses comply with the executive order in reopening their businesses, the order shields those businesses from civil liability.  

On June 30, 2020, the Georgia General Assembly passed SB 359, which limits business liability by precluding lawsuits based on COVID-19 unless the claimant proves gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of emotional distress.  The law also provides a rebuttable presumption that a customer has assumed the risk of infection if the business has either (1) provided notice on a receipt that says anyone entering the premises has waived his or her right to seek civil liability as a result of COVID-19 or (2) posts a sign at the entrance stating that the customer is waiving their right to sue and is assuming the risk of contracting COVID-19 by entering the premises.  Like the immunity generally, the rebuttable presumption does not apply if the claimant can show gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of emotional distress.  Because the rebuttable presumption does not apply to grossly negligent, reckless, or intentional conduct, it is largely duplicative of the general immunity the statute provides.  Governor Kemp signed the bill into law on August 5, 2020.

NOTE:  Employees in Georgia generally cannot bring negligence claims against their employers under the state’s workers’ compensation statute.  So, while SB 359 would likely provide immunity to employers from COVID-19 claims brought by their employees, they are likely already protected from these claims.  However, the statute specifically excepts workers’ compensation claims from its protections, and workers’ compensation remains available to employees who claim to have contracted COVID-19 at work.

Businesses Covered: 

• SB 359 covers all businesses.
• Governor Kemp’s executive order applies to medical practices, hospitals, dental practices, other healthcare providers, gyms, fitness centers, bowling alleys, tattoo parlors, salons, beauty shops, barber shops, massage parlors, and restaurants.

Key Terms: 

• SB 359: “No healthcare facility, healthcare provider, entity, or individual, shall be held liable for damages in an action involving a COVID-19 liability claim against such healthcare facility, healthcare provider, entity, or individual, unless the claimant proves that the actions of the healthcare facility, healthcare provider, entity, or individual, showed:  gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
• SB 359: “Except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, in an action involving a COVID-19 liability claim against an individual or entity for transmission, infection, exposure, or potential exposure of COVID-19 to a claimant on the premises of such individual or entity, there shall be a rebuttable presumption of assumption of the risk by the claimant when . . . .”
• Executive Order:  “WHEREAS:  Pursuant to OCGA 38-3-51(j), any individual, partnership, association, or corporation who acts in accordance with an order, rule, or regulation entered by the Governor pursuant to the authority granted by OCGA 38-3-51 will not be held liable to any other individual, partnership, association, or corporation by reason thereof in any action seeking legal or equitable relief.”

Exceptions/Waivers: Immunity does not apply to acts of gross negligence, willful or wanton misconduct, reckless infliction of harm, or intentional infliction of emotional distress.

Hawaii

Overview: On April 16, 2020, Governor Ige issued Executive Order No. 20-05, which orders all health care facilities, professionals, and volunteers to render assistance in support of the State’s response to the COVID-19 disaster as recognized by Emergency Proclamations. During the pendency of these proclamations, health care workers who act in good faith are immune from civil liability for any death, injury, or property damage that occurs while rendering such assistance. Immunity does not apply to willful misconduct, gross negligence, or recklessness.

Businesses Covered:

• “Health care facility” means any program, institution, place, building, or agency, or portion thereof, private or public, other than federal facilities or services, whether organized for profit or not, used, operated, or designed to provide medical diagnosis, treatment, nursing, rehabilitative, or preventive care to any person or persons.
• “Health care professional” includes physicians, surgeons, podiatrists, dentists, psychologists, nurses, veterinarians, acupuncturists, massage therapists, naturopathic physicians, chiropractors, occupational therapists, physical therapists, respiratory therapists, speech pathologists, and pharmacists licensed under the applicable State law who (i) are providing health care services at a health care facility in response to the COVID-19 outbreak and are authorized to do so; or (ii) are working under the direction of the Hawai‘i Emergency Management Agency (HIEMA) or Hawai‘i Department of Health (HDOH) pursuant to Emergency Proclamations.

• “Health care volunteer” means all volunteers or medical, nursing, social work, occupational, physical, or respiratory therapist students who do not have licensure who (i) are providing services, assistance, or support at a health care facility in response to the COVID-19 outbreak and are authorized to do so; or (ii) are working under the direction of HIEMA or HDOH pursuant to Emergency Proclamations.

Key Terms: Covered entities “who in good faith comply completely with all state and federal orders regarding the disaster emergency, shall be immune from civil liability for any death of or injury to persons, or property damage alleged to have been caused by any act or omission … at a time when the health care [worker] was engaged in the course of rendering assistance to the State by providing services, assistance, or support in response to the COVID-19 outbreak, unless it is established that such death of or injury to persons, or property damage was caused by [] wilful misconduct, gross negligence, or recklessness. . .”

Exceptions/Waivers: Immunity does not apply to willful misconduct, gross negligence, or recklessness. The order also does not preempt any immunity from civil liability otherwise available. 

Idaho

Overview: On March 20, 2020, Governor Little signed House Bill 529, which provides civil immunity for certain professionals during disasters in response to a declared national, state, or local emergency, disaster, or catastrophic event.

Additionally, on August 24, 2020, the Idaho House introduced House Bill 2, House Bill 3,  House Bill 4, and House Bill 5, respectively. These bills provide COVID-19 liability protections to persons, accredited institutions of higher education and to persons who take actions in good faith to address a coronavirus-related disaster or emergency, which includes the owners and operators of any premises.

Businesses Covered: 

• House Bill 529 covers certain professionals including, architects, engineers, and contractors;
• House Bill 2 covers “persons”, defined broadly as any entity recognized in Idaho including, “individual[s], corporation[s], limited liability company[ies], partnership[s], trust[s], association[s], cit[ies], count[ies], school district[s], college[s], university[ies] or other institution[s] of higher education, or other unit[s] of local government.” However, “person” does not include any Idaho public health district, the federal government or any of its agencies, the state of Idaho or any of its agencies, or any foreign government.
• House Bill 3 covers “accredited institutions of higher education”, defined as “any public or private university, college, or community college in Idaho accredited by the northwest association of schools and colleges or any public professional-technical school operated by the state of Idaho or any political subdivision thereof”; and
• House Bills 4 and 5 cover “persons who take actions in good faith”, which refers broadly to “any and all individuals and private and public entities in any location and at any time, including without limitation, providers of goods and services, owners and operation of any premises such as stores, restaurants, bars, hotels, assisted living facilities, offices, schools, colleges, universities and other institutions of higher education, libraries, hospitals, medical clinics, residences, homes, churches, daycare facilities, and the like that function or operate during the coronavirus-related disaster or emergency…”

Key Terms:

• Under House Bill 529, no architect, engineer, or contractor may be held liable for personal injury, wrongful death, property damage, or other loss related to a service provided at the request or approval of a national, state, or local public official in response to a declared emergency, disaster, or a catastrophic event.
• Under House Bill 2, a “person” is immune from civil liability for damages or an injury resulting from exposure of an individual to coronavirus on the premises owned or operated by the person or during an activity managed by the person.
• Under House Bill 3, an accredited institution of higher education or any of its agents “shall not be liable for any claim arising from transmission or contraction of COVID-19.”
• And under House Bills 4 and 5, a person who acts in “an effort to address or mitigate the disaster or emergency arising from a coronavirus-related disaster or emergency” is immune from civil liability arising from the exposure to or the transmission of the coronavirus for acts or omissions “made in good faith”.

Exceptions/Waivers:

Under House Bill 529, immunity does not apply to architects, engineers, and contractors who render services within ninety (90) days following the end of the declared emergency.

Under House Bill 2, immunity does not apply to a person whose actions are the result of willful misconduct, reckless infliction of harm, or intentional infliction of harm.

Under House Bill 3, immunity applies only to accredited institutions of higher education who act “without malice or criminal intent and without reckless, willful, and wanton conduct as defined in section 6-1601” of the Idaho Code.

Under House Bills 4 and 5, the immunity does not apply to persons who fail to make a good faith effort to comply with a “statute, rule, or lawful order of a government entity in effect at the time and such failure is the proximate cause of injury to another”. Moreover, House Bills 4 and 5 do not apply “to acts or omissions that occur during a declared coronavirus-related disaster or emergency that are unrelated to or unaffected by the declared coronavirus-related disaster or emergency”.

Notes: House Bill 529 became effective on July 1, 2020.  Whereas, House Bill 2, 3, 4 and 5 have been referred to the House Judiciary, Rules and Administration Committee.

Illinois

Overview: Effective April 1, 2020, Governor Pritzker’s Executive Order 2020-19 immunizes health care professionals, health care volunteers, and health care facilities, immune from civil liability for any injury caused by any act or omission that occurred while the professional, volunteer, or facility was providing health care services in response to the COVID-19 outbreak. The Executive Order is based on section 6(c)(1) of the Illinois Emergency Management Agency Act (IEMA Act), 20 ILCS 3305/6, which provides that the Governor is authorized to “make, amend, and rescind all lawful necessary orders, rules, and regulations to carry out the provisions of this Act within the limits of the authority conferred upon the Governor.”

Businesses Covered: 

• “Health Care Facilities” means:
• Facilities licensed, certified, or approved by any State agency and covered by the following: 77 Ill. Admin. Section 1130.215(a)-(f); University of Illinois Hospital Act, 110 ILCS 330; Alternative Health Care Delivery Act, 210 ILCS 3/35(2)-(4); Emergency Medical Services (EMS) Systems Act, 210 ILCS 50; or Department of Veterans’ Affairs Act, 20 ILCS 2805;
• State-operated Developmental Centers certified by the federal Centers for Medicare and Medicaid Services and licensed State-operated Mental Health Centers created pursuant to the Mental Health and Developmental Disabilities Administrative Act, 20 ILCS 1705/4;
• Licensed community-integrated living arrangements, licensed community mental-health centers, federally qualified health centers under the Social Security Act (42 U.S.C. § 1396d(l)(2)(B)), and any government-operated site providing health care services established for the purpose of responding to the COVID-19 outbreak.
• “Health Care Professional” means all licensed or certified health care or emergency medical services workers who (i) are providing health care services at a Health Care Facility in response to the COVID-19 outbreak and are authorized to do so; or (ii) are working under the direction of the Illinois Emergency Management Agency (IEMA) or DPH in response to the Gubernatorial Disaster Proclamations.
• “Health Care Volunteer” means all volunteers or medical or nursing students who do not have licensure who (i) are providing services, assistance, or support at a Health Care Facility in response to the COVID-19 outbreak and are authorized to do so; or (ii) are working under the direction of IEMA or DPH in response to the Gubernatorial Disaster Proclamations.

Key Terms: 

• During the pendency of the Gubernatorial Disaster Proclamation, Health Care Facilities, Health Care Providers, and Health Care Volunteers, “shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission by the Health Care Facility, which injury or death occurred at a time when a Health Care Facility was engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak, unless it is established that such injury or death was caused by gross negligence or willful misconduct of such Health Care Facility, if 20 ILCS 3305/15 [state-operated facilities] is applicable, or by willful misconduct, if 20 ILCS 3305/21 [private facilities] is applicable.”
• For Health Care Facilities, “rendering assistance” in support of the State’s response must include cancelling or postponing elective surgeries and procedures, as defined in DPH’s COVID-19 – Elective Surgical Procedure Guidance, if elective surgeries or procedures are performed at the Health Care Facility. In addition, for Health Care Facilities, “rendering assistance” in support of the State’s response must include measures such as increasing the number of beds, preserving personal protective equipment, or taking necessary steps to prepare to treat patients with COVID-19. For Health Care Professionals, “rendering assistance” in support of the State’s response means providing health care services at a Health Care Facility in response to the COVID-19 outbreak or working under the direction of IEMA or DPH in response to the Gubernatorial Disaster Proclamations. For Health Care Volunteers, “rendering assistance” in support of the State’s response means providing services, assistance, or support at a Health Care Facility in response to the COVID-19 outbreak or working under the direction of IEMA or DPH in response to the Gubernatorial Disaster Proclamations.”

Exceptions/Waivers: Injuries or deaths caused by gross negligence or willful misconduct of Healthcare Facilities or Health Care Professionals; or injuries or deaths caused by willful misconduct by Health Care Volunteers.

Indiana

Overview: On February 2, 2021, the Indiana House passed House Bill 1002, which would broadly shield businesses and individuals from suits “arising from COVID-19.”   Indiana’s Senate passed a similar bill, Senate Bill 1, on January 28, 2021.

On March 6, 2020, Governor Holcomb issues Executive Order 20-02 declaring a public-health emergency in Indiana as a result of COVID-19.  On March 30, 2020, Governor Holcomb issued Executive Order 20-13 calling upon healthcare workers to help respond to the public-health emergency. Existing Indiana law (IC 34-40, Chapter-13.5) insulates facilities and individuals from civil liability for injuries resulting from healthcare services provided in response to an emergency.

Businesses Covered: 

House Bill 1002

• Protects individuals, corporations, health care providers, post-secondary educational institutions, limited liability companies, partnerships, local governments and any other legal entity.
• The bill contains some additional protections for health care workers against professional discipline.

Executive Order 20-02

• To qualify for immunity a healthcare employee must:
• Have a license to provide health care services under Indiana law or the law of another state; and
• Provide a health care service: (A) within the scope of the person's license to another person; and (B) at a location where health care services are provided during an event that is declared as a disaster.
• A healthcare facility is a facility or other location that is providing health care services in response to an event that is declared as a disaster emergency.

Key Terms: 

House Bill 1002

• Provides that a person is not liable to a claimant for loss, damage, injury, or death arising from COVID-19 unless the claimant proves by clear and convincing evidence that the person caused the loss, damage, injury, or death by an act or omission constituting gross negligence, willful or wanton misconduct, or intentional misrepresentation
• Protects health care providers from professional discipline for most acts or omissions arising from a “disaster emergency.”
• Specifies that orders and recommendations issued by local, state, and federal government agencies and officials during a state “disaster emergency” do not create new causes of action or legal duties.

Executive Order 20-02

• IC 34-30-13.5-1 Immunity Sec. 1. Except as provided in section 2 of this chapter, a [healthcare professional or healthcare facility] may not be held civilly liable for an act or omission relating to the provision of health care services in response to an event that is declared a disaster emergency under IC 10-14-3-12, regardless of whether the provision of health care services occurred before or after the declaration of a disaster emergency.

Exceptions/Waivers: Both House Bill 1002 and Executive Order 20-02 except from liability protections acts of gross negligence, willful or wanton misconduct or intentional misrepresentation that could be proven with “clear and convincing evidence.” 

Notes: The Indiana House and Senate are expected to reconcile the differences between the House Bill 1002 and Senate Bill 1.  The differences between the two bills are not substantial.  Commentators expect Governor Holcomb to sign the resulting legislation, which he has signaled is a priority for early 2021.

Iowa

Overview: One June 18, 2020, Governor Kim Reynolds signed into law a liability reform bill, Senate File 2338.  The law applies to all businesses and has broad liability protections summarized below.  

Businesses Covered: All

Key Terms: 

• Actual injury requirement: no civil liability unless the exposure results in inpatient hospitalization or death.
• Premises liability reform: liability for exposure to COVID-19 only in case of premises controller’s
• reckless disregard to substantial and unnecessary risk;
• exposure to COVID through actual malice; or
• intentional exposure.
• Safe harbor: no civil liability if a person was substantially in compliance with state or federal statute or guidance at the time of the exposure.

Exceptions/Waivers: Actual malice, intentional torts, reckless disregard to substantial and necessary risks.

Kansas

Overview: On June 8, 2020, Governor Kelly signed into law a bipartisan COVID liability reform bill, House Bill 2016. This followed her veto of a prior bill on May 26.

Businesses Covered: All

Key Terms: 

• “a person, or an agent of such person, conducting business in this state shall be 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.”
• Products liability immunity for those who provide qualified products (PPE, medical devices, tests, medications, lab services) used to treat COVID-19 in response to written order or directive finding public need for such product.

Exceptions/Waivers: Gross negligence, wanton, or reckless conduct.

Notes: Applies retroactively to any cause of action accruing on/after March 12, 2020; Expires on January 26, 2021.

Kentucky

Overview: On March 30, 2020 Governor Beshear signed Kentucky Senate Bill 150 into law which provides limited immunity to the following entities:

• healthcare providers, which are protected from liability for ordinary negligence related to healthcare decisions involving COVID-19; and
• makers and suppliers of PPE and personal hygiene supplies, which are protected from claims of ordinary negligence and product liability if the manufacture/provision of such supplies is not in the company’s normal course of business.

On January 6, 2021, Senate Bill 5 was introduced in the Kentucky Legislature.  The bill states that premises owners cannot be held liable for injuries suffered by invitees during a declared health emergency such as a coronavirus pandemic. The bill does not cover cases involving gross negligence or wanton, willful or malicious conduct.

Businesses Covered: 

• Kentucky SB 150 does not define “health care provider” but the law is expected to cover:
• Hospitals;
• Senior living facilities;
• Nursing homes;
• Manufacturers of PPE and personal hygiene supplies
• This protection applies only if the business “does not make or provide such products in the normal course of its business.”
• Suppliers of PPE and personal hygiene supplies
• This protection applies only if the business “does not make or provide such products in the normal course of its business.”
• Kentucky SB5 defines “premises” as:
• Private or public roads, walking or cycling paths, sidewalks, hiking or 24 multi-use trails, watercourses, or water ways;
• Buildings and structures, including houses of worship, schools, homes, parks, restaurants, shops, stadiums, arenas, gyms, medical facilities, long-term care facilities, retail facilities, and facilities in which individuals charged with or convicted of a crime are incarcerated;
• Aircraft, automobiles, trains, buses, watercraft, whether or not licensed as a common carrier or motor carrier; or
• Any other location where members of the public may engage in personal, commercial, social, religious, or other activities.

Key Terms: 

SB150

• A healthcare provider who renders treatment of a COVID-19 patient during the state of emergency will be immune from civil liability for ordinary negligence for any personal injury resulting from said treatment or failure to act in providing further treatment.
• This defense will include healthcare providers who:
• Prescribe or dispense medicines for off-label use to attempt to combat COVID-19;
• Provide healthcare services outside of the provider’s professional scope of practice; or
• Utilize equipment or supplies outside of the product’s normal use for medical practice.
• Any business in Kentucky that makes or provides PPE or personal hygiene supplies (e.g., masks, gowns, or sanitizer), in response to the state of emergency and that does not make or provide such products in the normal course of its business will be immune from ordinary negligence and product liability.”

SB5

• An owner who invites or permits another person to enter his or her premises while a declared emergency remains in effect or continues, does not:
• Assure that the premises are safe from any risk of exposure to the conditions caused by the emergency;
• Owe a duty to protect from or warn about any related risk; or
• Assume responsibility, or incur liability, for any alleged injury, loss, or damage related to conditions caused by the emergency.

Exceptions/Waivers: 

SB150

• Immunity does not extend to claims of gross negligence, or willful and wanton conduct.
• Conduct of healthcare providers is only immunized to the extent that the healthcare provider “acts as an ordinary, reasonable, and prudent health care provider would have acted under the same or similar circumstances.”
• Conduct of manufacturers or suppliers of PPE or hygiene products is only immunized to the extent the companies “acted in good faith and in an ordinary, reasonable, and prudent manner under the same or similar circumstances.”

SB5

• Immunity does not extend to claims of wanton, willful, malicious, or grossly negligent conduct or to an intentional failure to adhere to executive actions while the declared emergency continues.
• No person is relieved of any prior obligation to exercise case in the use of the concerned premises.

Notes: 

• The law does not address application of the immunity to conduct occurring prior to enactment.
• The language is somewhat ambiguous about whether the standard of care preceding the pandemic applies despite the “immunity” referenced in the law.

Louisiana

Overview: On June 12 and 13, 2020, Governor Edwards signed into law Act No. 362 and Act No. 336 , limiting liability for all persons and entities conducting business pursuant to rules and guidance.

On September 25, 2020, Rep. Danny McCormick introduced HB 9, which, if passed, would provide immunity from civil liability and criminal prosecution for assembling to exercise religious freedom during the Covid-19 public health emergency.

On September 27, 2020, Rep. Blake Miguez introduced HB 45, which, if passed, would provide immunity from civil and criminal liability to any person or entity “for failure to comply with restrictions set forth in an emergency order declared in response to COVID-19.”  The immunity from liability would be retroactive back to March 11, 2020.

Businesses Covered: All persons and entities.

Key Terms: 

• Act No. 362: No liability “for damages or personal injury resulting from or related to an actual or alleged exposure to COVID-19 in the course of or through the performance or provision of [the person or entity’s] business operations.”
• Act No. 336: No liability “for any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19 in the course of or through the performance or provision of [the person or entity’s] business operations.”
• Person or entity must have been “substantially comply[ing] with the applicable COVID-19 procedures” established by federal/state/local agencies to be immune from liability under Acts No. 362 and 336.
• Act No. 336 provides additional immunity from liability for civil damages to persons or entities “hosting, promoting, producing or otherwise organizing an event of any kind.”

Exceptions/Waivers: 

• Does not provide immunity from damages from actual or alleged exposure to COVID-19 shown by evidence to be the result of gross negligence, willful misconduct, or intentional criminal misconduct.
• Does not affect right of any person to receive benefits under workers’ compensation law, but Act No. 336 provides that employees “shall have no remedy based in tort for [Covid-19] exposure against his employer.”

Maine

Overview: No current proposals to limit liability.

Maryland

Overview: On March 5, 2020. Gov. Hogan issued a Declaration of State of Emergency and Existence of Catastrophic Health Emergency - COVID-19.  Pursuant to Md. Code Ann. Pub. Safety § 14-3A-06, a health care provider is immune from civil or criminal liability if the health care provider acts in good faith and under a catastrophic health emergency proclamation.

Businesses Covered: 

• Under the law, a “health care provider” includes:
  • a health care facility, including a hospital, a related institution, an ambulatory surgical facility, an inpatient rehabilitation facility, a home health agency, a hospice, any other health institution, service, or program that requires a certificate of need.
  • a health care practitioner includes any individual who is licensed, certified, or otherwise authorized under the Health Occupations Article to provide health care services.
  • an individual licensed or certified as an emergency medical services provider under Maryland law.

Key Terms: A health care provider is immune from civil or criminal liability if the health care provider acts in good faith and under a catastrophic health emergency proclamation.

Exceptions/Waivers: Immunity applies only if the health care provider acts in “good faith.”

Massachusetts

Overview: Governor Baker signed Massachusetts Bill S. 2640 into law on April 17, 2020.  The law provides immunity to healthcare facilities, professionals and volunteer organizations from civil liability for any damages allegedly sustained by an act or omission in the course of providing care during the COVID-19 emergency, provided that the covered entities were providing health care services in good faith.

Businesses Covered: 

• Healthcare facilities and professionals.
• Volunteer organizations are further immune from civil liability for any damages occurring at the volunteer organization’s facility where the damage arises from the use of the facility for the commonwealth’s response and activities related to the COVID-19 emergency.

Key Terms: “Good faith”, shall, without limitation, include acts or omissions undertaken consistent with the guidelines for crisis standards of care for the COVID-19 pandemic issued by the department of public health, and exclude, without limitation, acts or omissions based on race, ethnicity, national origin, religion, disability, sexual orientation or gender identity, and deceptive acts or practices, and fraud.

Exceptions/Waivers: 

• Gross negligence, recklessness or conduct with intent to harm or discriminate based on race, ethnicity, national origin, disability, sexual orientation or gender.
• The immunity shall not apply to consumer protection actions brought by the attorney general, or to false claims actions by or on behalf of the commonwealth.

Notes: Effective from March 10, 2020 “until terminated or rescinded.”

Michigan

Overview: On March 29, 2020 Governor Whitmer issued Executive Order 2020-30 providing that healthcare workers were immune from liability related to services supporting Michigan’s response to the COVID-19 pandemic Additionally, Michigan’s Emergency Management Act immunizes from civil liability certain healthcare workers during a state of disaster. (MCL 30.411(4).).  Governor Whitmer declared a state of disaster on April 1, 2020.

Businesses Covered: 

• The Emergency Management Act applies to hospitals, persons “licensed to practice medicine or osteopathic medicine and surgery,” and several specific professions — medical residents, registered nurses, practical nurses, nursing students, dentists, veterinarians, pharmacists and their interns, and paramedics.
• The Executive Order applies to “licensed health care professional or designated health care facility.” The public health code provides for licensing more healthcare professionals than those listed in the Emergency Management Act. Emergency medical technicians, chiropractors, social workers, and midwives are covered.  This list is non-exhaustive.

Key Terms: Covered individuals are immune from civil liability when providing “services during a state of disaster declared by the governor and at the express or implied request of a state official or agency or county or local coordinator or executive body.” Governor Whitmer’s order is likely a “qualifying request.”

Exceptions/Waivers: Gross negligence or willful misconduct.

Notes: In August, Governor Whitmer vetoed Senate Bill 899, which would have provided additional protections to healthcare workers.

Minnesota

Overview: The Minnesota Emergency Management Act of 1996, Minnesota Statutes Chapter 12, immunizes “responders” from civil liability and administrative sanctions when acting in concert with an “emergency plan.”

Businesses Covered: Minnesota’s statute covers “Responders,” which is broadly defined to include physicians, nurses, first responders, hospitals, clinics, laboratories, and other health care providers and entities.

Key Terms: A responder in any impacted region acting consistent with emergency plans is not liable for any civil damages or administrative sanctions as a result of good-faith acts or omissions by that responder in rendering emergency care, advice, or assistance.

Exceptions/Waivers: Immunity not applicable if the entity or agent acts in a willful and wanton or reckless manner in providing the care, advice, or assistance

Mississippi

Overview: On April 10^th, Governor Tate Reeves signed Executive Order 1471, granting healthcare professionals and healthcare facilities immunity from civil liability for injuries and deaths caused by acts or omissions that occurred while they were providing healthcare services. This immunity does not extend to acts or omissions constituting crime, fraud, malice, reckless disregard, willful misconduct, or a false claim. This grant of immunity was set to expire on May 15, 2020 unless otherwise modified or amended.  Governor Reeves repeatedly extended the effect of this Executive Order through July 31, 2020.

On July 8^th, Governor Reeves signed into law S.B. 3049 or the “Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act”. This law provides business owners civil immunity from coronavirus exposure suits if they can show good-faith efforts were made to follow public health guidance. It also provides healthcare facilities very liberal immunity for injuries arising from acts/omissions by healthcare professionals. Acts of malice and intentional misconduct would be excluded from such immunity. The act was to take retroactive effect from March 14, 2020 until one year after the end of the COVID-19 state of emergency.

Businesses Covered: 

Executive Order 1471

• Hospitals;
• Clinics;
• Nursing homes;
• Mental health centers;
• Fields hospitals; or
• Other facilities designated by the Mississippi Emergency Management Agency for temporary use for the purposes of providing healthcare services in support of the State’s COVID-19 response.

Mississippi Back-to-Business Liability Assurance Act

• Commercial premises;
• Residential premises;
• Educational premises;
• Religious premises;
• Governmental premises;
• Cultural premises;
• Premises with charitable or health care purpose;
• “Any facility where health care services are provided,” meaning any facility where any “care, treatment, service, or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition” occurs
• PPE manufacturers, designers, distributors and donors

For profit entities

Key Terms: 

Executive Order 1471

• Any Healthcare Facility “shall be immune from suit for civil liability for any injury or death alleged to have been sustained because of the Facility’s acts or omissions while providing healthcare services, including “screening, assessing, diagnosing, treating patients for COVID-19 or otherwise acting in support of the State’s COVID-19 response
• This immunity extends to “acts or omissions undertaken because of a lack of resources attributable to the [] pandemic” that renders the Facility “unable to provide the level or manner of care that otherwise would have been required in the absence of the [] pandemic.”
• This Order “shall remain in effect and in full force until . . . May 15, 2020 unless it is modified, amended, rescinded, or suspended.”

Executive Order 1485

• “Executive Order 1471 is amended to extend its duration to continue in full force and effect until . . . May 31, 2020 unless it is modified, amended, rescinded, or superseded.”

Executive Order 1494

• “Executive Order 1471 is amended to extend its duration to continue in full force and effect until . . . June 15, 2020 unless it is modified, amended, rescinded, or superseded.”

Executive Order 1497

• Executive Order 1471 is amended to extend its duration to continue in full force and effect until . . . July 1, 2020 unless it is modified, amended, rescinded, or superseded.”

Senate Bill 3049

• No liability for civil damages for injuries/death related to actual/alleged COVID-19 exposure for the following:
  • Essential businesses when the exposure occurred in the course of providing services prior to the availability of public health guidance;
  • Owners, occupants, or any other persons in control of a premises who permits persons onto the premises if they made a good faith attempt to follow applicable public health guidance;
  • Health care facilities when the exposure occurred in the course of providing services if the facility made a good faith attempt to follow applicable public health guidance;
  • For-profit entities that design, manufacture, label, sell, distribute, or donate PPE utilized by the government, healthcare facility, for-profit entity, religious or charitable organization in response to COVID-19 when exposure was caused by the PPE;
  • For profit entities that design, manufacture, label, sell, distribute, or donate disinfecting/cleaning supplies or PPE outside the ordinary course of persons business when exposure was caused by the disinfecting/cleaning supplies or PPE.

Exceptions/Waivers: 

Executive Order 1471

• Immunity does not apply if there is “a showing of malice, reckless disregard or willful misconduct.”
• “Such immunity shall not extend to acts or omissions that constitute a crime, fraud, malice, reckless disregard, willful misconduct, or would otherwise constitute a false claim . . . .”

Senate Bill 3049

• Immunity does not apply “where the plaintiff shows, by clear and convincing evidence, that a defendant, or any employee or agent thereof, acted with actual malice or willful, intentional misconduct.
• This bill is not intended to affect workers’ compensation law.

Notes: 

Senate Bill 3049
Even if liability is established, damages are limited to “actual economic compensatory damages” and “noneconomic damages [are] not to exceed $250,000.”

Missouri

Overview: On May 5, the Missouri House of Representatives adopted SB 662 which provides that any healthcare provider who in good faith renders care in connection to the COVID-19 pandemic shall not be liable for any civil damages (unless grossly negligent/willful and wanton) during a period where an executive order declaring a state of emergency is in effect.

Due to the House’s amendments, the Missouri Senate must vote on the bill again before it will be submitted to Governor Parson for consideration and signature into law.

On November 12, 2020, Governor Parson announced a special legislative session to address COVID-19 liability. He called on the General Assembly to enact legislation to provide liability protection for health care providers who provide care as necessitated by a declared state of emergency.  In response, SB 1 was introduced into the Missouri Senate on November 13.  The bill provides that any health care provider who provides care as necessitated by an emergency shall not be liable for civil damages or administrative sanctions.

On January 6, 2021, SB 51 was introduced into the Missouri Senate.  The bill aims to shield businesses and health care providers from most COVID-related lawsuits, unless a high standard of proof can be met.

Businesses Covered: 

SB 662:

• Hospitals;
• Health maintenance organizations;
• Ambulatory surgical centers;
• Long-term care facilities;
• Consumer directed services;
• Personal care assistance services;
• Home-based healthcare services;
• Other entities providing healthcare services under the authority of a license or certificate; or
• Healthcare systems or other entities that take measures to coordinate, arrange for, respond to, provide, or address issues related to the delivery of healthcare services.

SB 1:

• Physicians;
• Hospitals;
• Health maintenance organizations;
• Ambulatory surgical centers;
• Long-term care facilities;
• Registered or licensed practical nurses;
• Specialty healthcare providers including dentists, optometrists, podiatrists, pharmacists, chiropractors, physical therapists, and psychologists;
• Physicians-in-training;
• Consumer directed services;
• Personal care assistance services;
• Home-based healthcare services;
• Other entities providing healthcare services under the authority of a license or certificate; or
• Healthcare systems or other entities that take measures to coordinate, arrange for, respond to, provide, or address issues related to the delivery of healthcare services.

SB 51:

• Individual and entities engaged in businesses, services, activities, or accommodations;
• Health care providers (covers all of the entities enumerated above in SB1); and
• Individual and entities who design, manufacture, import, distribute, label, package, lease, sell, or donate a covered product. A “covered product” is “a pandemic or epidemic product, drug, biological product, device, or an individual component thereof to combat COVID-19, excluding any vaccine or gene therapy.”

Key Terms: 

SB 662:

• “Any health care provider who in good faith renders care or assistance, with or without compensation, in connection with the COVID-19 pandemic, including, but not limited to, taking measures to coordinate, arrange for, respond to, provide, or address issues related to the delivery of health care services, shall not be liable for any civil damages for any acts or omissions that occur during the period there is in effect an executive order of the governor of Missouri declaring that a state of emergency exists.”

SB 1:

• Any health care provider who provides care as necessitated by an emergency shall not be liable for any civil damages or administrative sanctions for any failure to exercise the skill and learning of an ordinarily careful health care provider in similar circumstances in the delivery or nondelivery of such health care.

Exceptions/Waivers: 

SB 662:

• Immunity does not extend to “damages occasioned by gross negligence or by willful or wanton acts or omissions in rendering [] care or assistance” in connection with the COVID-19 pandemic.

SB 1:

• Immunity does not extend to “damages for acts or omissions in rendering health care necessitated by an emergency when a person has sustained a serious injury as a result of malicious misconduct or conduct that intentionally caused damage to the plaintiff.”

SB 51:

• No individual or entity engaged in businesses, services, activities, or accommodations shall be liable in any COVID-19 exposure action.
• No health care provider shall be liable in any COVID-19 medical liability action.
• No individual or entity who designs, manufactures, imports, distributes, labels, packages, leases, sells, or donates a covered product, as defined shall be liable in a COVID-19 products liability action.

Notes: 

• For SB 662 and SB 1, critics claim that the protections are too broad in: (1) failing to limit the legal immunity to apply only to those who care for or service COVID-19 patients; and (2) protecting all medical negligence regardless of cause as long as Missouri is under a state of emergency.
• SB 51 provides a one-year statute of limitations for actions and that damage awards be apportioned according to percentage of fault.  For cases of willful misconduct where punitive damages are awarded, such an award cannot exceed the amount of compensatory damages.

Montana

Overview: Under Montana Code 10-3-110, during a declared state of emergency, healthcare professionals are immune from civil liability (except for gross negligence) arising from services rendered during the emergency. There is no indication this immunity extends to healthcare facilities that employ these healthcare professionals.

Under Montana Code 10-3-111(2)(B)(ii), owners of facilities used for “civil defense functions” and owners of facilities used for response and recovery shelters are immune from certain civil liabilities (except for gross negligence) arising out of activities undertaken in response to a disaster or emergency.

On January 8, 2021, Montana Senate Bill 65 was introduced in the Senate Business, Labor, and Economic Affairs Committee.  The bill attempts to enact broad reforms by limiting the liability of premises owners and health care providers; limiting products liability claims in response to COVID-19; and providing a safe harbor for those who comply with certain regulations.

Businesses Covered: 

• Mont. Code 10-3-110: None
• Mont. Code 10-3-111:
  • Facilities used for “civil defense functions” defined as “preparedness functions and responsibilities of disaster or emergency services”;
• Facilities used for response and recovery shelters.

• SB65:
• “Health care professionals” include physicians and other licensed, certified, or authorized health care practitioners, including those engaged in telemedicine.
• “Premises” includes real property and any accompanying building, as well as “any other location, vehicle, or place, serving a commercial, residential, educational, religious, governmental, cultural, charitable, or health care purpose.”

Key Terms: 

• Mont. Code 10-3-110: A health care professional who, “in good faith” “renders or fails to render emergency care, health care services, or first aid during a declared emergency or disaster is not liable for any civil damages or injury.”
• Mont. Code 10-3-111: The following are “not liable for the death or injury of individuals or for damage to property as a result of an act or omission [] arising out of activities undertaken in response to an [] emergency and while complying with or reasonably attempting to comply” with Montana’s Code on Disaster and Emergency Services or an order/rule promulgated under those Code provisions:
• “[O]wners of facilities used for civil defense or other response and recovery shelters pursuant to a fallout shelter license or privilege agreement or pursuant to an ordinance relating to blackout or other precautionary measures enacted by a political subdivision...”

• SB65:
  • Premises owners are not liable for injuries sustained from an individual’s exposure to COVID-19 on the premises or during an activity managed by the person in control of the premises.
  • Health care professionals are not liable for causing or contributing to the death or injury of an individual while “providing or arranging health care in support of the state’s response” to COVID-19.
  • Liability is limited for causes of action resulting from “the design, manufacturing, labeling, selling, distributing, or donating of household disinfecting or cleaning supplies, personal protective equipment, or a qualified product” in response to COVID-19 or the failure to provide proper instructions or sufficient warnings.
  • Liability is limited for product liability claims for damages caused in part by COVID-19.

Exceptions/Waivers: 

• Mont. Code 10-3-110: Immunity does not apply when the damage/injury was caused by “gross negligence or willful and wanton misconduct” and:
• an act/omission arising out of activities undertaken in response to the disaster or emergency;
• an act/omission related to the rendering of or failure to render services; or
• evacuation or treatment or the failure to evacuate or provide treatment conducted in accordance with disaster medicine or at the direction of military or government
• Mont. Code 10-3-111: Immunity will not apply “in cases of willful misconduct, gross negligence, or bad faith.”
• SB65: Requires ‘substantial compliance’ with federal, state or public health guidance in order to be protected from liability.
• Additionally, the bill does not provide protection for an act of gross negligence, willful and wanton misconduct, or an intentional tort.

Notes: Governor Greg Gianforte has stated that the passage of SB65 (or similar legislation) is a requirement to him removing the mandatory mask order in Montana.

Nebraska

Overview: On March 31, Governor Ricketts signed EO 20-12 which suspends several statutes and their regulations from the Health Care Facility Licensure Act relating to specific healthcare facilities and services. However, immunity from civil liability is not addressed in the Order.

Under Nebraska Revised Statute Annotated § 25-21,282, protection from liability is afforded to corporations (other than vendors and manufacturers of rescue equipment) who donate communication equipment, PPE, or medical supplies that are used for emergency medical services to fire departments, rescue/emergency services, or political subdivisions. Statute described below.

On January 8, 2021, Nebraska Legislative Bill 139 was introduced in the state legislature, which seeks to protect hospitals, businesses, and schools—among other entities—from most coronavirus-related lawsuits.

Businesses Covered: 

Neb. Stat. § 25-21,282:

• No vendors or manufacturers of equipment or protective gear that is used in firefighting or rescue/emergency services.
• Otherwise:
  • Corporations;
  • Business trusts;
  • Partnerships;
  • Limited liability companies;
  • Joint ventures;
  • Fire departments; or
  • Public corporations
• Other legal or commercial entities.

LB139:

• First responders, which are state and local law enforcement personnel – this includes police and fire department personnel, emergency medical and management personnel, ambulance service provider personnel, and public works personnel.
• Health care facilities, including licensed and state-approved facilities providing health care, hospice facilities or programs, elder group homes, and assisted-living programs.
• Health care providers, including licensed, registered, or certified health care personnel; emergency medical technicians; and volunteer or military personnel who are approved by the state to provide health care services in response to COVID-19.
• Premises, including any physical place, any real property, and any accompanying structure “serving a commercial, residential, educational, religious, governmental, cultural, charitable, or health care purpose.”

Key Terms: 

Neb. Stat. § 25-21,282:

• Donors of “fire control or rescue equipment to a fire department or a political subdivision for use by its fire department shall not be liable for civil damages for personal injuries, property damage or loss, or death caused by the fire control or rescue equipment after donation…”
• “Fire control or rescue equipment” is defined as “any vehicle, equipment, tool, communications equipment, or protective gear used in firefighting, rescue services, or emergency medical services.”
• “Fire department” is defined as “any paid or volunteer fire department, company, association, or organization or first-aid, rescue, or emergency squad serving a . . . fire protection district or any other public or private fire department.”

LB139:

• The bill prohibits liability for any acts or omissions “permitted by, in substantial compliance with, or consistent with any [applicable] federal or state statute, regulation, or order or public health guidance related to COVID-19.”
• “A person who owns, occupies, possesses, or is in control of a premises” is not liable for injuries or damages sustained from an individual’s exposure to COVID-19 on the premises or during an activity managed by the person in control of the premises.
• Health care providers, health care facilities, and first responders are not liable for acts or omissions that occurred “while providing or arranging health care.”

Exceptions/Waivers: 

Neb. Stat. § 25-21,282:

• No immunity “for injury, damage, loss, or death caused by the donor’s intentional or reckless conduct or gross negligence.”
• “[T]his section shall not apply to a vendor or manufacturer of fire control or rescue equipment.”

LB139:

• Acts of gross negligence or willful misconduct are not protected, but a plaintiff must prove such conduct by clear and convincing evidence.
• Civil actions seeking recovery from damages caused by exposure to COVID-19 must be brought within two years of accrual.

Nevada

Overview: On August 4, 2020, members of the Senate preliminarily approved Senate Bill 4.  The bill protects businesses from liability in the event that a customer contracts COVID-19.  Governor Sisolak approved the bill on August 11, 2020.

Businesses Covered: “Entity” defined as “business, governmental entity or nonprofit organization and the officers and the officers and employees of the business, governmental entity or nonprofit organization.”

Key Terms: The entities covered are “immune from liability” in “any civil action where plaintiff alleges a personal injury or death as a result of exposure to COVID-19 while on a premises owned or operated by an entity, or during an activity conducted or managed by the entity” if the “entity was in substantial compliance with controlling health standards”.

Exceptions/Waivers: The entity is immune from liability “unless the plaintiff pleads sufficient facts and proves that: (1) the entity violated controlling health standards with gross negligence; and (2) the gross negligence was the proximate cause of the plaintiff’s personal injury or death.”  If the entity was not in substantial compliance with controlling health standards,  the “immunity described … does not apply”.

Notes: Governor Sisolak approved the bill on August 11, 2020.

New Hampshire

Overview: The New Hampshire Legislature is considering a bill (SB 63) that provides: No business organization shall be liable for personal injury resulting from or related to an actual or alleged exposure to coronavirus in the course of such business organization’s business activity, or in the course of working for such business organization in any capacity, provided that in the performance of its business activity at the time of alleged or actual exposure, the business organization was following applicable government standards and guidance related to coronavirus exposure. 

New Jersey

Overview: On April 13, Governor Murphy signed into law SB 2333, granting immunity to healthcare professionals, facilities, and systems during the state’s public health emergency.  Specifically, this immunity extends to:

• civil liability for any injury sustained from an act/omission undertaken by healthcare professionals, facilities, or systems in the course of providing medical services to COVID-19 patients, including those undertaken in good faith to support efforts to treat and prevent the spread of COVID-19; and
• civil and criminal liability for any damages related to the allocation of ventilators or other scarce medical resources.

The grant of immunity applies retroactively to March 9, 2020, when Governor Murphy first declared a public health emergency.  On August 24, Assembly Bill 4559 was introduced in the New Jersey Legislature. The bill proposes that the civil immunities granted to for-profit healthcare facilities and healthcare systems by SB 2333 expire on August 31.

On June 1st, Assembly Bill 4189 and on June 4^th its companion bill, Senate Bill 2502, were introduced in the New Jersey Legislature. Both bills propose establishing immunity for businesses against any damage claim stemming from COVID-19 exposure occurring onsite at the businesses. Immunity would not extend to “willful misconduct, reckless infliction of harm or the intentional infliction of harm.”

On June 29, Senate Bill 2628 was introduced in the New Jersey Senate. The bill proposes general immunity for businesses, including non-profits as well as colleges and universities, against actions related to the pandemic.

On October 8, SB 3006 was introduced in the New Jersey Legislature.  The bill would remove the civil immunity provided by SB 2333 to nursing homes and related facilities (which includes home health agencies, hospices, intermediate care facilities, dialysis centers, long-term care facilities, rehabilitation facilities, residential treatment facilities, skilled nursing facilities, and adult day care centers).

Businesses Covered: 

SB 2333:

• Any non-federal institution, building or agency that is used to provide health services, medical, or dental treatment or nursing, rehabilitative, or preventive care to any person;
• Ambulatory surgical facility;
• Home health agency;
• Hospice;
• Hospital;
• Infirmary;
• Intermediate care facility;
• Dialysis center;
• Long-term care facility;
• Medical assistance facility;
• Mental health center;
• Paid and volunteer emergency medical services;
• Outpatient facility;
• Public health center;
• Rehabilitation facility;
• Residential treatment facility;
• Skilled nursing facility;
• Adult day care center;
• When used for or in connection with the previously listed facilities:
  • Laboratory;
  • Research facility;
  • Pharmacy;
  • Laundry facility;
  • Health personnel training and lodging facility;
  • Patient, guest, and health personnel food service facility;
  • Portion of an office or office building used by persons engaged in healthcare professions or services.
• “Healthcare systems,” which is not defined by the legislation.

Assembly Bill 4189 and Senate Bill 2502

• Employers, including any:
  • Individual;
  • Partnership;
  • Association;
  • Corporation;
  • Business trust;
  • Legal representative acting directly or indirectly in the interest of an employer in its relations to employees; or
  • Organized group of persons acting directly or indirectly in the interest of an employer in its relations to employees.

Senate Bill 2628

• Business, including any:
  • Non-governmental corporation
  • For-profit corporation
  • Non-profit corporation
  • Company
  • Partnership
  • Firm
  • Sole proprietorship
  • Business Trust
  • Other form of business organization or entity
• Public and private institutions of higher education

Trustees, directors, officers, employees, agents, servants, and volunteers of said business

Key Terms: 

SB 2333:

• Healthcare professionals will not be liable for civil damages for alleged injury/death from acts/omissions occurring while providing medical services in support of the State’s response to the COVID-19 emergency.
• Healthcare facilities and systems that own or operate healthcare facilities shall not be liable for civil damages for alleged injury/death from acts/omissions by its agents if that agent is a healthcare professional.
• Immunity shall include any act/omission undertaken in good faith by a healthcare facility or system to support efforts to treat and prevent the spread of COVID-19 during the COVID-19 emergency, including telemedicine and diagnosing/treating patients outside their normal scope.
• Healthcare facilities and systems that own or operate healthcare facilities will not be criminally or civilly liable for alleged damages for injury/death resulting from acts/omissions by the facility, system, or their agents in connection with the allocation of ventilators or other scarce medical resources, assuming the facility adopts a scarce critical resource allocation policy.
• This act is retroactive from March 9, 2020.

Assembly Bill 4189 and Senate Bill 2502

• “[A]n employer is immune from civil liability for damages or injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the employer, or during activity managed by the employer.”

Exceptions/Waivers: 

SB 2333:

• “The immunity granted pursuant to [] subsection [(1)(c)] shall not apply to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.”

Assembly Bill 4189 and Senate Bill 2502

• Immunity shall not apply to willful misconduct, reckless infliction of harm, or intentional infliction of harm.

Senate Bill 2628

• Businesses and institutions of higher learning that in good faith comply with applicable public and personal health and safety measures to prevent or mitigate COVID exposure, and whose measures are based on guidance promulgated by the CDC, OSHA, HHS, or other federal or state departments will not be liable in civil or administrative actions for any act or omission resulting in damages arising from COVID exposure
• Same immunity extends to directors, officers, administrators, etc. of the business and institution of higher learning
• Immunity extends to situations where exposure to COVID or a related strain occurred because the exposed person was required to be on business property/campus, entered/remained on the property/campus by invitation, or exposure occurred at some place in the course of conducting business/activities, providing services, or doing volunteer work on behalf of the business/institution
• This act is retroactive from March 9, 2020.

Senate Bill 2628

• Immunity shall not apply to business, institution of higher learning, or person causing damage by a willful, wanton, or grossly negligent act or omission or impact a worker compensation claim/award.

New Mexico

Overview: On June 19, 2020, House Bill 16, was introduced from the prior session’s legislation.  The proposed bill limits civil liability for business owners.

Businesses Covered: A person who operates a business, facility or activity that is open to the public.

Key Terms: The business owner is “not liable for a breach of duty of care when damages or injury are alleged to result from exposure or potential exposure to coronavirus disease 2019.”

Exceptions/Waivers: The immunity does not apply if the owner failed to “compl[y] with federal and state laws that provide requirements for mitigation of the spread of coronavirus disease 2019.”

Notes: The proposed bill has not been printed and is pending review by the NM House Rules & Order of Business Committee.

New York

Overview: On April 3, 2020, Governor Cuomo signed into law the Emergency Disaster Treatment Protection Act (“EDTPA”), Art. 30-D, N.Y. Pub Health Law, § 3080-3082, which provides healthcare facilities and professionals (including executives and administrators of the facilities) immunity from any civil and criminal liability for damages resulting from an act or omission done in the course of providing healthcare services if done in good faith and pursuant to a COVID-19 emergency rule.

Under this same law, volunteer organizations (including certain companies) are immune from civil and criminal liability for any damages, no matter their cause, occurring at the facility that arise due to the state’s response and activities under the state’s emergency declaration.

These immunities do not extend to gross negligence, reckless misconduct, intentional harm or willful or intentional criminal misconduct. The immunities take effect retroactively starting on March 7, 2020, the date of the state’s emergency declaration, until the declaration expires.

On August 3, Governor Cuomo signed SB 8835 to amend the Emergency Disaster Treatment Protection Act passed in April 2020 by narrowing its scope of immunity.  The bill removes any immunity protections that previously covered non-coronavirus cases. The new legislation specifies that immunity applies to the “assessment or care” of a person with suspected/confirmed coronavirus but removes “prevention” of the coronavirus from the definition of healthcare services.

Businesses Covered: 

Emergency Disaster Treatment Protection Act

• “Health care facilities”:
  • Hospital;
  • Nursing home; or
  • Other facility licensed or authorized to provide healthcare services for any individual under New York law or under a COVID-19 emergency rule.
• “Health care professional,” includes:
  • Health care facility administrator;
  • Executive; or
  • Other person responsible for directing or managing the facility.
• “Volunteer organization”:
• Any company that has “made its facility or facilities available to support the state’s response and activities under the COVID-19 emergency declaration.”

Key Terms:

Emergency Disaster Treatment Protection Act

• Any healthcare facility or professional shall have immunity from any liability, civil or criminal, for any harm/damages sustained as a result of an act/omission in the course of arranging for or providing health care services, if:
• The facility or professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule;
• The act/omission occurs in the course of arranging for or providing healthcare services, and treatment is impacted by the facility’s or professional’s decisions or activities in response to or as a result of the COVID-19 outbreak; and
• The facility or professional is arranging for or providing health care services in good faith.

• A volunteer organization shall have immunity from any liability, civil or criminal, for any harm/damages irrespective of the cause of such harm/damage occurring at its facility that arises from the state’s response and activities under the COVID-19 emergency declaration and in accordance with any applicable emergency rule.
• “This act shall take effect immediately and shall be deemed to have been in full force and effect on or after March 7, 2020 and shall apply to a claim for harm or damages” occurring “on or after the date of the COVID-19 emergency declaration and on or prior to the expiration date of such declaration.”

SB 8835

• The bill amends the definition of “health care services” to remove “prevention” of COVID-19 as a type of act eligible for immunity
• The bill amends the definition of “health care services” to remove the following acts as eligible for immunity: “care of any other individual” who does not have a confirmed/suspected case of COVID-19 but who presents at a healthcare facility or professional during the period of the COVID-19 emergency declaration
• The bill removes immunity protections for healthcare facilities or professionals “arranging for” healthcare services.

The bill is effective immediately and shall apply to claims for harm/damages if the act/omission at issue occurred on or after the effective date, provided that it shall not apply to any act/omission occurring after the expiration of the COVID-19 emergency declaration

Exceptions: 

Emergency Disaster Treatment Protection Act

• The immunity for healthcare facilities and professionals does not apply if harm was caused by “an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm”
  • “[A]cts, omissions or decisions resulting from a resource or staffing shortage shall not be considered to be willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.”
• The immunity for volunteer organizations shall not apply if the claimed harm was caused by the “willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.”

North Carolina

Overview: Governor Cooper signed Senate Bill 704 into law on May 4, 2020. Section 4.14(a) of the bill provides immunity from civil liability to all businesses allowed to be open in the state.  On July 2, 2019, Governor Cooper signed into law House Bill 118, providing additional protections to individuals and entities.

Businesses Covered:

• Senate Bill 704 covers all all businesses, subject to the limitations provided by the executive orders issued by Governor Cooper, the latest of which was issued on December 8, 2020 and mandates certain business-specific capacity and time limitations: December 8, 2020 Order.
• House Bill 118 covers all individuals, all governments and governmental subdivisions, and all legal entities.

Key Terms:

• SB 704: Immunity from civil liability for any businesses authorized to be open “with respect to claims from any customer or employee for any injuries or death alleged to have been caused as a result of the customer or employee contracting COVID-19 while doing business with or while employed by the [] business.”
• HB 118: Immunity from liability for “any act or omission that does not amount to gross negligence, willful or wanton conduct, or intentional wrongdoing.” Requires premises owners to reasonable notice of actions taken for the purpose of reducing the risk of transmission of COVID-19” but also states that “[n]o person shall be liable for the failure of any individual to comply” with the notice requirement.

Exceptions/Waivers: 

• No immunity if injuries or death were caused by an act or omission constituting gross negligence, reckless misconduct, or intentional infliction of harm.
• Does not preclude an employee from seeking an appropriate remedy under North Carolina’s Workers’ Compensation Act.
• HB 118 applies to claims arising no later than 180 days after the expiration or rescission of Executive Order No. 116 issued March 10, 2020.

North Dakota

Overview: Two bills have been introduced in the North Dakota legislature to limit liability for lawsuits based on exposure to COVID-19.  The first bill, HB 1175, would provide immunity all businesses and health care facilities from lawsuits related to COVID-19 unless the plaintiff could show intentional conduct or actual malice.  This bill is a bipartisan measure.  The second, HB 1376, would give immunity to employers from COVID-19 based lawsuits unless the employee could show “willful misconduct or infliction of harm.”  This bill is backed by Republicans in the legislature and would apply only to lawsuits brought by an employee against their employer.  The North Dakota House Industry, Business and Labor Committee heard hearings on both bills on January 27, 2021.

Businesses Covered: 

• HB 1175: All property owners and health care facilities
• HB 1376:  All employers

Key Terms:

• HB 1175
  • A person may not bring a lawsuit alleging exposure to COVID-19 unless the lawsuit involves intentional conduct or actual malice.
  • A person who owns or controls a premises is immune from civil liability for any act omission resulting in exposure to COVID-19 unless that person intentionally exposed the visitor to COVID-19 or acted with actual malice.
  • A safe harbor provision provides immunity to anyone from lawsuits related to COVID-19 for an act or omission that were in substantial compliance with a federal or state statute or regulation that applied to the person at the time of the exposure.
  • A healthcare provider or healthcare facility is immune from COVID-19 lawsuits based on any act related to treating someone with COVID-19 unless the lawsuit involves willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
• HB 1376
• An employer is immune from a lawsuit brought by an employee based on exposure to COVID-19, unless the injury was caused by the employer’s willful misconduct.

Exceptions/ Waivers:

• HB 1175
  • Intentional conduct or actual malice
  • For healthcare providers, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
• HB 1376
• Willful misconduct

Ohio

Overview: House Bill 606, signed by Governor DeWine on September 14 2020, broadly and retroactively immunizes businesses, schools and healthcare providers from lawsuits alleging COVID-19 transmission.  Section 1 of the bill pertains to healthcare providers (broadly defined) and Section 2 pertains to all persons (including businesses).

Senate Bill 308, passed by the Ohio Senate, would expand existing liability protections for healthcare workers and immunize from liability a broad array of “service providers,” including grocery stores, lodging providers, retailers, and churches.

Businesses Covered: 

• House Bill 606:
• Section 1 broadly applies to all manner of healthcare workers from doctors and nurses to dentists, therapists, and speech-language pathologists.
• Section 2 applies even more broadly to “any person,” which includes individuals, schools, for-profit, and non-profit entities, religious entities, and state institution of higher education.
• Senate Bill 308:
• Health care providers, which includes traditional providers (such as doctors, nurses and hospitals) and also respiratory care professionals; medical assistants and technicians; dental assistants; nurse aides; orderlies; home health agencies; hospice programs; and facilities, including their agents, employees, officers, board members, and volunteers. Service Providers – Broadly includes any person or entity providing lodging, shelter, groceries, pharmaceutical products, fuel products, other products, retail merchandise, manufacturing, care, religious or other nonprofit services, or other acts that are part of or outside the normal scope of a person’s business or nonprofit activities during the period of the declared disaster and not more than 180 days after the end of such period.

Key Terms: 

• House Bill 606 (Sect. 1) provides that “a healthcare provider that provides healthcare services, emergency medical services, first-aid treatment, or other emergency professional care, including the provision of any medication or other medical equipment or product, as a result of or in response to a disaster or emergency is not subject to professional disciplinary action and is not liable in damages to any person or government agency in a tort action for injury, death, or loss to person or property that allegedly arises from . . . [a]n act or omission of the healthcare provider in the health care provider’s provision, withholding, or withdrawal of those services.”
• House Bill 606 (Sect. 2) provides that “[n]o civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof. . . ”
• Senate Bill 308 would expand Ohio’s existing immunity during declared disasters to include:
• Actions taken during or in response to a declared disaster or emergency (instead of as a result of a disaster), and
• Health care services rendered by a health care provider for the diagnosis, prevention, treatment, cure, or relief of a health condition, illness, injury, or disease, including providing medication, medical equipment, or other medical product (instead of emergency services). Health care providers who provide these services as well as traditional health care services during a declared disaster are not liable in a tort action for injury, death, or loss to person or property arising from the provider’s or EMT’s act or omission.
• In addition to actions or omissions in the provision of services by a health care provider, the bill extends immunity to the following:
• Withholding or withdrawing health care services, emergency medical services, first-aid treatment, or other emergency professional care;
• Any decision related to providing, withholding, or withdrawing those services;
• Compliance with an executive order or director’s order issued during and in response to the disaster or emergency.
• Under the bill, “Service providers” (defined above) are not liable in damages to any person:
• In a civil action for illness or for injury, death, or loss to person or property, allegedly arising from the service provider’s act or omission in providing or performing that provider’s “services” that are in response to, or are intended to assist persons to recover from, a “disaster” or otherwise to sustain themselves during the period of the declared disaster and not more than 180 days after the end of such period;
• In a civil action for injury, death, or loss to person or property resulting from, or related to, the person’s actual or alleged exposure to an illness in the course of or through that provider’s provision of services.

Exceptions/Waivers: 

• Under House Bill 606 (section 1), healthcare providers are not immune from liability if their action, omission, decision, or compliance constitutes reckless disregard. Immunity for all persons under section 2 does not apply unless exposure or transmission occurs as a result of reckless conduct, intentional misconduct, or willful or wanton misconduct on the part of the person against whom the action is brought.
• Under Senate Bill 308 , the immunity granted for healthcare workers does not apply to actions, omissions, decisions, or compliance that constitute willful or wanton misconduct. This replaces the current law provision under which immunity applies only to acts or omissions that do not constitute reckless disregard for the consequences so as to affect the life or health of a patient.  Service providers are not immune if there is clear and convincing evidence that the service provider’s act or omission is intentional, willful, or wanton misconduct.

Notes: 

• Governor DeWine signed HB 606 on September 14, 2020.
• The Ohio Senate passed Senate Bill 308. 

Oklahoma

Overview: Governor Stitt signed Senate Bill 1946 into law on May 21, 2020. The bill provides immunity from liability to persons acting in accordance with federal and state regulations and guidance.

Businesses Covered: All persons, individuals, firms, partnerships, corporations, associations

Key Terms: No liability in “civil action claiming 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.”

Exceptions/Waivers: None

Oregon

Overview: On June 30 2020, Governor Brown signed House Bill 4212.  The bill immunizes certain public entities from civil liability that is predicated on claims from COVID-19.

Businesses Covered: 

• Owner, officer, operator, employee or agent of isolation shelter; or
• Owner, officer, operator, employee or agent of public entity.

Key Terms: The entities covered are “immunize[d]” from “civil liability that is predicated on claim of illness, injury or death from COVID-19.”

Exceptions/Waivers: The immunity does not apply to conduct that “constitutes gross negligence, malice or fraud, that is willful, intentional or reckless, that is criminal or that is unrelated to COVID-19.”

Notes: The bill passed on July 7, 2020 with an effective date of June 30, 2020.

Pennsylvania

Overview: On May 6, 2020, Gov. Wolf issued an Order designating licensed, certified, registered, or otherwise authorized health care professionals engaged in providing COVID-19 care “agents of the commonwealth” solely for purposes of immunity from civil liability related to the Commonwealth’s COVID-19 disaster emergency response.

Businesses Covered: Any individual who holds a license, certificate, registration or certification or is otherwise authorized to practice a health care profession or occupation in Pennsylvania, and who is engaged in emergency services activities or the provision of disaster services activities related to the PAss COVID19 disaster emergency response in one of the following settings:

• Any health care facility, nursing facility, personal care home, assisted living facility, engaged in emergency services activities or the provision of disaster services activities related to PA’s COVID-19 disaster emergency response
• Any alternate care site, community-based testing site, or non-congregate care facility used for the purpose of conducting emergency services activities or the provision of disaster services activities related PA’s COVID-19 disaster emergency response

Key Terms: Individuals engaged in providing COVID-19 care are designated as “agents of the commonwealth” and are immune from civil liability and shall not be liable for the death of or any injury to a person or for loss of or damage to property as a result of the provision of any emergency services activity or disaster services activity.

Exceptions/Waivers: 

• The facilities or entities themselves, as opposed to the individuals, are expressly excluded from this liability immunity.
• Immunity does not apply to cases of willful misconduct or gross negligence.
• Immunity does not apply to health care professionals rendering non-COVID-19 medical and health treatment or services.

Notes: 

• On November 30, 2020, Gov. Wolf vetoed PA House Bill 1737, which was passed in the General Assembly on November 20. The bill would have prevented a broad range of businesses from facing civil liability for “actual or alleged exposure to COVID-19” when good faith efforts were taken to comply with public health guidelines.
• Covered businesses included: any “school entity” (as defined by the bill), personal protective equipment manufacturers, distributors, labelers and donors, users of personal protective equipment, any person providing “business or government services,” or any “covered provider” (generally, health care services providers and facilities).
• Immunity and Exceptions/Waivers: generally, the bill provided that a covered entity shall not be civilly liable for damages or personal injury absent a showing, by clear and convincing evidence, of gross negligence, recklessness, willful misconduct or intentional infliction of harm.
• On June 9, the Pennsylvania General Assembly passed a concurrent resolution directing Gov. Wolf to issue a proclamation or executive order ending his March 6 Proclamation of Disaster Emergency. Wolf has petitioned the Pennsylvania Supreme Court to determine whether the General Assembly can end his disaster emergency proclamation.
• The following legislation has been introduced in the Pennsylvania Senate:
• PA Senate Bill 1181 (introduced on June 4) would provide immunity from civil liability to health care practitioners and providers acting in good faith for any act or omission in the course of rendering health care during the state of a disaster emergency. The bill would also provide immunity from civil liability to medical equipment manufacturers and providers for claims stemming from an act or omission that is related to the proper use, condition or nature of the health care equipment.  Such immunity would not extend to criminal actions, intentional torts or instances involving gross negligence.
• PA Senate Bill 1161 (introduced on June 4) would provide that a person is immune from civil and criminal liability and administrative sanction for engaging in a “protected business operation,” which is defined as any business transaction or keeping a physical business location open. The immunity from liability would not apply in situations involving “actual harm,” which is an injury or illness that is directly and proximately caused by the interaction with the otherwise covered person or an agent of the person.
• PA Senate Bill 1194 (introduced on June 16) would provide that, absent clear and convincing evidence of gross negligence, a person that attempts, in good faith, to adhere to the COVID-19 emergency declaration, the Governor’s COVID-19 Business Closure Order or any other executive order relating to COVID-19, or any guidance issued by the Department of Health or the Secretary of Health relating thereto, shall not be liable for damages, injury or death related to actual or alleged exposure to COVID-19 in the course or provision of business services.
• The following legislation has been introduced in the Pennsylvania House:
• PA House Bill 2639 (introduced on June 29) would provide immunity from civil liability in the following circumstances, so long as the acts or omissions in question were undertaken in response to the COVID-19 disaster emergency:
• Covered health care providers, volunteers, and retired and vulnerable practitioners for claims arising out of an act or omission made during the course of rendering medical care;
• Manufacturers and distributors of equipment or other goods used by a covered health care provider in response to the COVID-19 disaster emergency for claims arising from the nature of condition of the equipment or goods, provided the equipment or goods are reasonably believed to be in good condition at the time of manufacture or delivery; and
• An employer who acts in good faith may not be subject to civil liability for any cause of action arising out of the COVID-19 status of an employee. An employer shall be presumed to have acted in good faith if the employer complies with all applicable laws relating to employment of the employee, including any lawful orders issued by the Governor as a result of the COVID-19 disaster emergency.  That presumption of good faith can be rebutted only by clear and convincing evidence establishing that the employer: 
• knew or should have known that an employee tested positive for COVID-19;
• failed to take reasonable measures to protect the safety of another employee or individual who had contact with the employee who tested positive for COVID-19; and
• injury or death results to another employee or individual as a result of contact with the employee who tested positive for COVID-19.
• The civil liability immunity for the above acts or omissions would not apply to criminal acts or intentional or reckless conduct.

Rhode Island

Overview: On April 10, 2020, Gov. Raimondo issued an executive order extending statutory immunity provided to “disaster response workers” under R.I. Gen. Laws § 30-15-15(a) to responding health care facilities, health care workers, other individuals and organizations assisting in responding to COVID-19.

Businesses Covered: 

• Health care facilities, health care professionals and other individuals and organizations assisting in responding to the virus and treating COVID-19 patients, whether delivering services in existing hospitals or surge hospitals, nursing facilities, or alternative nursing care sites.
• Landlord making the surge hospital locations and alternative nursing care sites available to the State, plus their employees, management companies, and contractors providing services to construct, operate or decommission the surge hospital locations.

Key Terms: Covered businesses are not liable for the death of, or injury to, persons, or for damage to property, as a result of disaster response activity.

Exceptions/Waivers: 

• Does not provide immunity for negligence that occurs in the course of providing patient care to patients without COVID-19 whose care has not been altered by the existence of the disaster emergency.
• Does not limit liability for willful misconduct, gross negligence, or bad faith.

Notes: Permits health care workers to provide services beyond or without a license as permitted by R.I. Gen. Laws 30-15-15(b).

South Carolina

Overview: Governor McMaster declared a state of emergency on March 13, 2020, triggering automatic protections for certain healthcare providers under the South Carolina Emergency Health Powers Act (S.C. Code Ann. §§ 44-4-100).  This statute is not unique to the COVID-19 pandemic and does not immunize any healthcare providers that are not specifically appointed by the state to assist in the relief effort.

The South Carolina State Senate and House of Representatives have recently begun to reconsider a previously stalled joint resolution (SC S 147) to provide liability protections to “health care providers and businesses that follow public health guidance,” regarding COVID-19.  Under the proposed legislation, covered entities that adhere to applicable public health guidance will be immune from liability for any covered claims that arise through acts or omissions in the course of the operation of such business, health care service of government entity, unless a claimant can prove, by clear and convincing evidence, that the damages were caused by knowingly reckless, willful or intentional misconduct, or by failing to make any attempt to adhere to public health guidance.

On July 21, 2020, Governor McMaster added his signature to a letter from 21 state governors to Congressional leadership, calling for “common sense” legislation to provide legal protections for healthcare workers and businesses during the COVID-19 pandemic.

Business Covered:

• Under State of Emergency: Any health care provider appointed pursuant by the Department of Health and Environmental Control (DHEC) pursuant to the South Carolina Emergency Health Powers Act.
• Under proposed legislation: All businesses and non-profit organizations, health care providers, and government entities, and all individuals associated therewith.

Key Terms:

• Under State of Emergency: “Any health care provider appointed pursuant to this Section will not be held liable for any civil damages as a result of medical care or treatment unless the appointee recklessly causes the damages.”
• Under proposed legislation:
• Covered entities that reasonably adhere to public health guidance shall be entitled to a safer harbor from liability for any acts or omissions in the course of any business or health care service.
• “Public Health Guidance”: any published guidance from various state governmental entities including the South Carolina OSHA and Department of Health and Environmental Control, regarding COVID-19 precautions that are applicable to the entity in question.
• Term: The proposed legislation would enact retroactive liability protections extending back to March 13, 2020, and to remain in effect through June 30, 2021, or 180 days after the State of Emergency is lifted, whichever is later.

Exceptions/Waivers: 

• Under State of Emergency: Reckless conduct.
• Under proposed legislation: No immunity will apply if a claimant is able to demonstrate, by clear and convincing evidence, that the damages were caused by knowingly reckless, willful or intentional misconduct, or by the entity’s failure to make any attempt to adhere to public health guidance.

South Dakota

Overview: The South Dakota state legislature is currently considering a proposal (SD HB1046) to limit liability for exposure to COVID-19.  This legislation would bar anyone from bringing suit unless they can prove, by clear and convincing evidence, that the exposure resulted in a diagnosis of COVID-19, as the result of intentional exposure with the intent to transmit.  However, healthcare providers and manufacturers of personal protective equipment would remain liable for acts constituting gross negligence, recklessness, or willful misconduct.

Businesses Covered: Broad protections are provided to any person, business or entity, with limited exceptions applicable to health care providers and manufacturers of personal protective equipment.

Key Terms:

• A party alleging intentional exposure shall state with particularity the circumstances constituting intentional exposure with the intent to transmit COVID-19 “including all duty, breach, and intent elements” and establish all elements by clear and convincing evidence.
• “Personal protective equipment” includes manufacturers of protective clothing, gloves, face shields, goggles, facemasks, respirators, gowns, aprons, coveralls, “and other equipment designed to protect the wearer from injury or the spread of infection or illness.”

Exceptions/Waivers: Health care providers and manufacturers of personal protective equipment may still be sued for acts constituting gross negligence, recklessness, or willful misconduct.

Notes: The proposed legislation would apply retroactively from January 1, 2020 until December 31, 2022.  HB1046 has passed the South Dakota House of Representatives and is currently being considered by the State Senate.

Tennessee

Overview: Governor Lee issued Executive Order No. 53 on July 1, 2020, which extends civil liability protections to healthcare providers that treat victims of COVID-19 and applies in all cases except gross negligence and willful misconduct.  This Order formalized existing protections for healthcare providers that were automatically triggered by Governor Lee’s State of Emergency, first issued on March 12, 2020.

The Tennessee state legislature had also been discussing proposed legislation to extend broader liability protections for all businesses but was unable to reach agreement before it adjourned its annual session on June 19, 2020.  The Tennessee House and Senate each voted to advance separate versions of legislation (HR 2623 and SB 2381) to enact the “Tennessee Recovery and Safe Harbor Act,” which would extend immunity to all businesses and health care providers for COVID-19 related liability, and Governor Lee had previously stated that he would support such efforts.  Under the proposed legislation, businesses and health care providers would be immune from COVID-19 related liability to the extent that the covered entities followed all applicable public health guidance, and the alleged injury was not the result of gross negligence or willful misconduct. However, the State House and Senate were unable to resolve differences in their proposed bills.

On July 21, 2020, Governor Lee added his signature to a letter from 21 state governors to Congressional leadership, calling for “common sense” legislation to provide legal protections for healthcare workers and businesses during the COVID-19 pandemic.

On August 3, 2020, Governor Lee issued a Proclamation calling for a special session of the state legislature, specifically encouraging the continued negotiation of COVID-19 related immunity legislation.  The state legislature is scheduled to reconvene for special session on August 10, 2020.

Businesses Covered: 

• Currently: Healthcare providers.
• Proposed Legislation: All businesses, healthcare providers, and schools.

Key Terms: 

• Currently: Licensed health care providers “shall not be liable for any illness, injury, death or damages related to the contraction of, or suspected contraction of, COVID-19 alleged to have been caused by acts or omissions within the limits of the provider’s license . . . including but not limited to acts or omissions resulting from lack of resources available to or arising out of the provider’s response to the COVID-19 pandemic that renders the health care provider unable to provide the level or manner of care or services that would otherwise be required in the absence of the COVID-19 pandemic.”
• Proposed Legislation:
• Pleading Requirements: A claimant seeking to hold a covered entity liable for COVID-19 related injuries must plead specific facts, with particularity, that the injury was caused by gross negligence or willful misconduct, and that the entity did not substantially comply with public health guidance. In a claim based on exposure or contraction of COVID-19, the claimant must also submit a Certificate of Good Faith, accompanied by a signed statement from an expert witness, confirming a good faith basis for maintaining the claim.  Failure to comply with these requirements would subject to complaint to dismissal with prejudice.
• Term: According to the Senate Bill, the Act would apply from the date of the first confirmed COVID-19 case in Tennessee (March 5, 2020) until July 1, 2022.  The House Bill would have the Act become effective when signed into law and would not apply retroactively.

Exceptions/Waivers: 

• Currently: Gross negligence and willful misconduct.
• Proposed Legislation: Covered entities would not be immune from liability if the claimant proves, by clear and convincing evidence, that the injury was caused by gross negligence or willful misconduct, and the covered entity did not comply with applicable public health guidelines.  Workers’ Compensation claims are also exempted from the Bill.

Notes:

• Executive Order No. 53 is currently set to expire on August 31, 2020, unless further extended by the governor.
• State legislators are scheduled to reconvene for a special session on August 10, 2020 to continue negotiating the proposed Tennessee Recovery and Safe Harbor Act.

Texas

Overview: No current proposals to limit liability.

Notes: The State legislature does not reconvene until January 2021 unless Governor Abbott calls a special session.

Utah

Overview: Governor Herbert signed Senate Bill 3007 into law on May 4, 2020, enacting 78B-4-517, Utah Code Annotated (“Immunity related to COVID-19”).

Businesses Covered: All

Key Terms: “[I]mmunity from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the person, or during an activity managed by the person.”

Exceptions/Waivers: 

• Does not provide immunity for willful misconduct, reckless infliction of harm, or intentional infliction of harm.
• “[D]oes not modify the application of: (3) This section does not modify the application of:
• Title 34A, Chapter 2, Workers' Compensation Act;
• Title 34A, Chapter 3, Utah Occupational Disease Act;
• Title 34A, Chapter 6, Utah Occupational Safety and Health Act; or
• Title 63G, Chapter 7, Governmental Immunity Act of Utah.

Vermont

Overview: On April 10, 2020, Governor Scott issued an addendum to the state’s emergency declaration in response to COVID-19 [Addendum 9 to Executive Order 01-20], to clarify and expand upon civil immunity for healthcare providers during declarations of emergency.

Businesses Covered: Healthcare facilities, providers and volunteers, specifically including:

• Hospitals;
• State-licensed nursing homes and assisted-living facilities;
• Level III residential care homes;
• Immediate care facilities for individuals with intellectual disability;
• State therapeutic community residences; and
• Alternate or temporary hospital sites designated for the treatment or alternate shelter for those who have been exposed to or infected with COVID-19.

Key Terms: 

• “Health Care Facilities, Health Care Providers, and Health Care Volunteers would be immune from civil liability for any death, injury, or loss resulting from COVID-19 related emergency management services or response activities, except in the case of willful misconduct or gross negligence.”
• “Health Care Providers” means all health care providers as defined by 18 V.S.A. § 9432(9), including volunteers, who are providing health care services in response to the COVID-19 outbreak and are authorized to do so.
• “Health Care Volunteers” means all volunteers or medical or nursing students who do not have licensure who are providing services, assistance, or support at a Health Care Facility in response to the COVID-19 outbreak and are authorized to do so.

Exceptions/Waivers: Gross negligence and willful misconduct.

Notes: Governor Scott’s emergency declaration is set to expire on February 15, 2020.

Virginia

Overview: Va. Code §§ 8.01-225.01 provides health care providers immunity from civil liability for any injury or wrongful death arising from abandonment when a state or local emergency has been declared and the provider was unable to provide the requisite level of care as a result of the emergency; and the statute also provides hospitals and other entities credentialing health care providers to deliver health care services with immunity from civil liability for any cause of action arising out of such credentialing or granting of practice privileges if a state or local emergency has been declared and the entity followed procedures that are consistent with the applicable standards of an approved national accrediting organization for granting emergency practice privileges.

Va. Code § 8.01-225.02 provides health care providers responding to a disaster with immunity from liability for any injury or wrongful death arising from the delivery or withholding of health care when a state or local emergency has been declared in response to the disaster and the emergency caused a lack of resources rendering the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency.

On April 28, 2020, Gov. Northam issued Executive Order No. 60, which clarifies that COVID-19 is a public health threat that constitutes a “disaster” as used in Va. Code §§ 8.01-225.01 - .02 and the definitions of “responds to a disaster” and “emergency and subsequent conditions” as used in those sections.

Businesses Covered: 

• Health care providers providing care during a state of emergency.
• Any hospital or other entity credentialing health care providers to deliver health care in response to a disaster.

Key Terms: 

• Any health care provider who responds to a disaster by delivering health care to persons injured in such disaster shall be immune from civil liability for any injury or wrongful death arising from abandonment by such health care provider of any person to whom such health care provider owes a duty to provide health care when (i) a state or local emergency has been or is subsequently declared; and (ii) the provider was unable to provide the requisite health care to the person to whom he owed such duty of care as a result of the provider's voluntary or mandatory response to the relevant disaster.
• Any health care provider who responds to a disaster shall not be liable for any injury or wrongful death arising from the delivery or withholding of health care when (i) a state or local emergency has been or is subsequently declared in response to such disaster, and (ii) the emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and which resulted in the injury or wrongful death at issue.
• NOTE: as used above, “responds to a disaster” includes but is not limited to: temporary withholding of the provision of procedures, consultations or surgeries performed in an inpatient or outpatient surgical hospital licensed under 12 Va. Admin. Code § 5-410, free-standing emergency department or endoscopy center, physicians’ office, or dental, orthodontic, oral surgeon, or endodontic offices that require PPE, the delay of which was not anticipated to cause harm to the patient by negatively affecting the patient’s health outcomes, or leading to disability or death.
• NOTE: as used above, “emergency and subsequent conditions caused a lack of resources . . .” includes but is not limited to: (i) insufficient availability of PPE, ventilators, or other drugs, blood products, supplies or equipment; (ii) insufficient availability of trained staff; (iii) having licensed healthcare professionals deliver care that, while included in the scope of their licensure, exceeds the scope of their credentials at the hospital or other health care facility at which they deliver services or exceeds the scope of the services that they normally provide; (iv) implementation or execution of triage protocols or scarce resource allocation policies necessitated by healthcare provider declaration of crisis standards of care; and (v) using supplies or equipment in innovative ways that are different from the way that these supplies and equipment are normally used.
• Any hospital or other entity credentialing health care providers to deliver health care in response to a disaster shall be immune from civil liability for any cause of action arising out of such credentialing or granting of practice privileges if (i) a state or local emergency has been or is subsequently declared and (ii) the hospital has followed procedures for such credentialing and granting of practice privileges that are consistent with the applicable standards of an approved national accrediting organization for granting emergency practice privileges.

Exceptions/Waivers: Gross negligence or willful misconduct.

Washington

Overview: No current proposals to limit liability.

West Virginia

Overview: On May 11, 2020 West Virginia Senate President Mitch Carmichael announced he is drafting legislation which aims to protect West Virginians from liability related to the COVID-19 pandemic.

Wisconsin

Overview: On April 15, 2020, the Wisconsin legislature enacted Act 185, which immunizes healthcare providers from civil liability under certain circumstances.  The law also provides that manufacturers of “emergency medical supplies” are not liable for injury or death caused by the products it has sold at cost or donated.

Businesses Covered: 

• Manufacturers, distributors, and sellers of emergency medical supplies sold at cost or donated.
• Healthcare providers, including hospitals and other facilities.

Key Terms: 

• Healthcare providers are immune if the action at issue is provided during the state of emergency (EO 72 on March 12, 2020) or within 60 days following the termination of the state of emergency, and one of the following:
  • The actions were provided in good faith.
  • The action was substantially consistent with direction or recommendations from federal, state, or local officials.
  • The action was substantially consistent with guidance published by state or federal health officials.
• Emergency medical supplies are “any medical equipment or supplies necessary to limit the spread of, or provide treatment for, a disease associated with the public health emergency related to the 2019 novel coronavirus pandemic, including life support devices, personal protective equipment, cleaning supplies, and any other items determined to be necessary by the secretary of health services.”
• The immunity applies only where a manufacturer, distributer, or seller donates the items or sells them at cost. Charitable organizations are immune from liability stemming from distribution as long as the distribution is free of charge.

Exceptions/Waivers: The immunity to healthcare providers does not apply to “reckless or wanton conduct or intentional misconduct.”  Section 895.4801(2)(c).

Notes: Emergency medical supplies is broadly defined, and it includes cleaning supplies. However, it does not extend to normal market transactions but is instead designed to encourage donations and low-cost sales.

Wyoming

Overview: On May 20, 2020, Governor Gordon signed into law Senate Bill 1002, which limits liability on behalf of all businesses that follow government instructions or act in good faith in response to the public health emergency.

Businesses Covered: Health care providers, persons, business entities.

Key Terms: Persons and business entities “who in good faith follow[] the instructions of a state, city, town or county health officer or who act[] in good faith in responding to the public health emergency [are] immune from any liability arising from complying with those instructions or acting in good faith.”

Exceptions/Waivers: Gross negligence; willful or wanton misconduct.