By Brian Skinner, Esq.
On June 30, 2020, the Ohio Senate passed a substitute bill for H.B. 606 passed by the House on May 28, 2020. The Senate amendments substantially rewrite the House bill by including many of the provisions of S.B. 308 passed by the Senate on June 3, 2020. The bill grants temporary qualified immunity from tort liability and professional discipline to specified health care providers who provide health care services or emergency services during a declared disaster or emergency unless the conduct results from a reckless disregard of the consequences or intentional or willful or wanton misconduct.
The bill gives individuals, businesses, and schools temporary immunity from civil liability for causing others to be exposed to “MERS-CoV,” “SARS-CoV,” or “SARS-CoV-2,” or any mutation of those viruses, unless the exposure is the result of “reckless conduct or intentional misconduct or willful or wanton misconduct.”
In addition to immunity from liability, the bill specifically proscribes the use of a government order, recommendation, or guideline to create a duty of care that may be enforced in a cause of action or that creates a new cause of action or substantive right. Finally, the bill precludes class actions and limits the bills applicability of the liability protections to the period March 9, 2020, through December 31, 2020.
At least seven states have recently passed laws or issued executive orders protecting businesses from coronavirus lawsuits. Those states include Connecticut, Louisiana, Mississippi, North Carolina, Oklahoma, Utah and Wyoming. Nevada enacted similar legislation but excluded schools and New York recently rolled back some liability protections for hospitals and nursing homes.
Other states are considering similar legislation, and a bill before Congress would temporarily grant protections to businesses nationwide. The congressional proposal, backed by Republicans and included in their new stimulus bill, would give temporary protection to businesses, schools, health care providers and nonprofits against being sued for alleged coronavirus-related negligence in state courts until 2024. The federal bill, like those in the states, would allow gross negligence allegations to proceed.
The new state laws range from exempting all businesses from lawsuits brought by people who contracted COVID-19, to applying only to specific businesses or industries. Others extend protections for manufacturing plants, such as those that shifted to producing personal protective equipment, while others apply only to health care facilities.
Most of the laws specifically state that they do not shield businesses that acted with “actual malice” nor apply to cases with “clear and convincing” evidence of deliberate wrongdoing. H.B. 606 provides immunity to businesses and schools unless the exposure is the result of “reckless conduct or intentional misconduct or willful or wanton misconduct.”
House bill 606 is supported by the Ohio Chamber of Commerce and other business groups. These groups argue that Ohio businesses need legal protections from coronavirus lawsuits in order to help the state’s economy recover from the coronavirus pandemic. H.B. 606 is intended to be a confidence-building measure by reducing the likelihood that businesses will be subject to coronavirus litigation as they re-open.
Plaintiffs’ attorneys and some consumer groups are concerned that the legislation will weaken protections for potential victims. While they agree that businesses need confidence to re-open, they are concerned that immunity from civil liability will decrease accountability for unsafe actors, encourage unsafe behavior and place those acting safely at a disadvantage.
One of the most troubling aspect of the H.B. 606 is the prohibition on a government order, recommendation, or guideline being the source of a duty of care that may be enforced in a cause of action.
As Ohio began the process of reopening its economy, the director of health ordered sector specific COVID-19 information and checklists for businesses/employers that mandated specific mitigation efforts for both employees and customers. The prohibition contained in H.B. 606 that a government order may not be the source of a duty of care means that violations of the of the health director’s order cannot be the basis for a civil cause of action. Unfortunately, this may result in the temptation for businesses to prioritize their own profits over the safety of customers and employees by failing to comply with requirements of the health order, such as distancing tables or increasing sanitizing efforts, all of which cost time and money.
Brian Skinner is the former counsel to the West Virginia House of Delegates Committee on the Judiciary and counsel to the West Virginia Senate Minority Caucus. He has over a decade of experience as an adviser to legislators on legal and political issues related to pending legislation; providing research and legal analysis services to legislative committees; and preparing bills, resolutions, amendments, and other documents for the West Virginia Legislature.