Pandemic Protection – Ohio Joins Other States and Provides Immunity from COVID-19-Related Lawsuits

Labor & Employment Alert

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This month, Ohio joined several other states, including Georgia, North Carolina, and Tennessee, in passing legislation protecting businesses and healthcare providers from liability related to COVID-19. House Bill (H.B.) 606 was passed by the Ohio Senate on September 2 and signed by Gov. Mike DeWine on September 14.

With this new law, the Ohio General Assembly acknowledges that plaintiffs have begun filing COVID-19-related lawsuits throughout the U.S. and that Ohio business owners, seeking to reopen their companies, need certainty of what liability they might face related to this pandemic. The General Assembly specifically found that it remains “a fact that recommendations regarding how best to avoid infection with COVID-19 change frequently, and such recommendations are often not based on well-tested scientific information,” explaining that “Ohio businesses need certainty and consistency to enable them to reopen.” The General Assembly also notes that businesses have not historically been required to keep the public safe from airborne germs and viruses, noting that “those individuals who decide to go out into public places are responsible to take those steps they feel are necessary to avoid exposure to COVID-19” (e.g., masks and social distancing).

What Entities Are Protected?

The new Ohio law, which applies retroactively from March 9 – the date of Gov. DeWine’s executive order declaring a state of emergency – provides protection for nonprofit and for-profit entities, governmental institutions, schools, state colleges and universities, and churches and other religious institutions. This broad protection mirrors that in other states, including Georgia, North Carolina, and Tennessee. For example, on August 10, Georgia Gov. Brian Kemp signed into law Senate Bill 359, which limits liability for a wide range of healthcare facilities and providers, individuals, and other entities (including businesses, government entities, and religious and educational institutions). On July 2, North Carolina Gov. Roy Cooper signed House Bill 118, which covers individuals, corporations, nonprofit corporations, business entities, trusts, estates, trusts, and any other legal entity. On August 17, Tennessee Gov. Bill Lee signed the Tennessee COVID-19 Recovery Act, which protects “an individual, healthcare provider, sole proprietorship, corporation, limited liability company, partnership, trust, religious organization, association… or any other legal entity whether formed as a for-profit or not-for-profit entity.” Each of these states now offer liability protection to a broad range of individuals, businesses, and other entities.

What Activity Is Protected?

The new Ohio law bars civil actions for damages for “injury, death, or loss to person or property… 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 of or contraction of, MERS-CoV, SARS-CoV, SARS-CoV-2 (COVID-19), or any mutation thereof” unless such exposure, transmission, or contraction is due to the “reckless conduction or intentional misconduct or willful or wanton misconduct.” Even if the immunity does not apply, the law bars class actions for injury, death or loss to person or property under this section. The new law also clarifies that government orders, recommendations, or guidelines do not create a duty of care and establishes a presumption that such orders, recommendations, and guidelines are “not admissible as evidence that a duty of care, a new cause of action, or a substantive legal right has been established.”

In addition to providing immunity from tort liability in the situations noted above, the new law also provides protection for healthcare providers from professional disciplinary action and tort liability from the “provision, withholding, or withdrawal of health care services, emergency medical services, first-aid treatment, or other emergency professional care.” Healthcare providers acting with “reckless disregard for the consequences” or “intentional misconduct or willful or wanton misconduct” are not protected under the new law.

Like Ohio, Georgia provides liability protection for covered entities except in instances of “gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” Georgia specifically recognizes a rebuttable presumption of assumption of risk by a claimant except in instances of gross negligence, willful and wanton misconduct, or reckless or intentional infliction of harm. For this presumption to exist, the entity must have issued the claimant a receipt or proof of purchase for entry to the premises. The receipt or proof of purchase must include a specific waiver of liability, for which Georgia provides language. Businesses also can create this rebuttable assumption of risk by posting at a premises’ point of entry specific assumption of the risk language. In North Carolina, immunity is similarly limited to claims of ordinary negligence, and North Carolina will not shield covered entities from any act or omission that amounts to “gross negligence, willful or wanton conduct, or intentional wrongdoing.” Also, although North Carolina requires businesses to provide “reasonable notice” of actions taken to reduce transmission of COVID-19 to individuals present on premises owned, possessed, or controlled by businesses, the law notes that no business may be liable for the failure of any individual to follow the provisions of the notice. Tennessee protects covered entities from claims for “loss, damage, injury, or death arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.” While the states may differ in some particulars, Ohio agrees with Georgia, North Carolina, and Tennessee that negligence is not enough for liability.

What Does This Mean for Employers?

In light of these new laws, employers have increased security against COVID-19-related lawsuits seeking damages for exposure to or contraction of the virus. This protection, however, does not mean that employers should lessen their vigilance in safety measures. Employers should continue to follow recommended guidelines, thereby protecting against allegations of reckless, willful, or wanton behavior, as well as protecting the health of their employees.