9 States With COVID-19 Biz Immunity, And 3 That May Follow

By Y. Peter Kang
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Law360 (June 26, 2020, 9:06 PM EDT) -- Amid pending efforts to enact legislation at the federal level that would shield businesses from COVID-19 infection suits, at least nine states have taken it upon themselves to pass their own such laws or enact executive orders, while lawmakers in at least three others are contemplating such changes.

In late April, U.S. Senate Majority Leader Mitch McConnell, R-Ky., said a civil liability shield for businesses would be a top Republican priority for the next federal coronavirus relief bill, calling it a "red line" issue. Despite a Senate Judiciary Committee hearing on the matter having been held in May, no details regarding a potential provision have materialized.

The lack of clarity on the issue has prompted Democratic lawmakers to cry foul, with Senate Minority Whip Dick Durbin, D-Ill., telling fellow senators June 16 that McConnell is holding up the relief bill in order to give corporations broad immunity from coronavirus lawsuits.

"Senator McConnell is holding back assistance for state and local governments, money for hospitals, and for the unemployed because of this so-called red line when it comes to immunity," Durbin said in a speech on the Senate floor. "I would encourage Republicans to finally produce and present to us the standard they want to make part of the law of the land. Let's see what's in it."

A spokesman for McConnell did not respond to a request for comment.

Meanwhile, more than a half dozen states have enacted their own laws or executive orders giving businesses a safe haven from coronavirus civil suits. Here, Law360 takes a look at the latest state-level business immunity legislation for coronavirus infections, starting with the most recently enacted measures, and examines other states with pending legislation.

Iowa

Republican Gov. Kim Reynolds on June 18 signed into law S. 2338, which states that premises owners shall not be held civilly liable for COVID-19 exposures or infections absent reckless disregard or actual malice.

The law, which is retroactive to Jan. 1, also shields individuals from civil suits over coronavirus exposure so long as they can demonstrate they substantially complied with applicable federal and state laws and regulations.

Arkansas

On June 15, Republican Gov. Asa Hutchinson signed an executive order giving businesses immunity to COVID-19 exposure suits.

Executive Order 20-33 does not apply to willful or reckless misconduct and does not bar workers' compensation claims. The law is effective immediately and will remain in effect until January 2021, when it will be up for review by the Arkansas General Assembly.

Louisiana

Gov. John Bel Edwards, a Democrat, signed H.B. 826 into law on June 13, giving businesses civil liability protections related to employee and customer coronavirus exposure.

Under the new law, which is retroactive to March 11 and remains in effect for the duration of the state's health emergency, a business can be sued if it can be established that it failed to substantially comply with all relevant federal, state and local guidelines and also committed gross negligence.

Kansas

Like other states, Kansas has enacted a law shielding businesses from COVID-19 suits so long as they can prove they substantially complied with applicable regulations and guidance. H.B. 2016 was signed into law by Democratic Gov. Laura Kelly on June 8. It is retroactive to March 12 and expires on Jan. 26, 2021.

The bill also provides civil immunity to doctors, nurses and hospitals providing treatment that has been impacted by COVID-19, absent gross negligence, and specifically states that nursing homes will be allowed to mount an affirmative defense to civil suits so long as they can establish that they've complied with public health directives.

Oklahoma

Business owners in the Sooner State no longer have to worry about getting sued over customer and employee COVID-19 infections after Oklahoma's governor last month enacted a law barring such claims.

Republican Gov. Kevin Stitt on May 21 signed into law S.B. 1946, which states that businesses can't be held civilly liable for infection or exposure to the novel coronavirus if the companies can prove they complied with prevailing federal and state guidelines and regulations.

North Carolina

A patchwork of laws and executive orders provide some North Carolina businesses with civil immunity to COVID-19 suits, although broader legislation remains pending.

Under the state's coronavirus relief bill, essential businesses such as grocery stores and makers of personal protective equipment have been granted temporary immunity from virus-related suits. A May 20 executive order issued by Democratic Gov. Roy Cooper expanded that safe harbor to restaurants.

Wyoming

Following a special two-day virtual session held in March, Wyoming lawmakers added controversial language to a bill in the state's $1.2 billion coronavirus relief package that provides civil immunity for businesses.

A last-minute amendment to SF File 1002 states that health care providers and "business entities" can't be held liable for coronavirus injuries if they made a good-faith effort to follow state and local health guidelines.

Republican Gov. Mark Gordon noted in a letter to the Wyoming Secretary of State that "ambush legislation" rarely results in good laws, but in this case the last-minute amendment furthered the overall goals of the bill. He signed it into law May 20 and it became effective immediately.

Alabama

Republican Gov. Kay Ivey issued an executive order on May 8 providing a litigation safe harbor for businesses and health care providers.

Under the order, retroactive to March 13, hospitals, businesses as well as public entities such as universities and its members are immune to civil suits stemming from COVID-19 exposure contracted on their premises.

The order, which does not cover reckless and intentional misconduct, also protects businesses from emotional distress claims.

Utah

Republican Gov. Gary Herbert on May 4 signed into law legislation shielding business owners from civil suits related to coronavirus infections or exposure that occurred on their premises. The law, S.B. 3007, excludes cases of willful misconduct and gross negligence and went into effect May 4.

Pending Legislation

North Carolina

While some essential businesses in the Tar Heel State are already protected from coronavirus suits, a pending bill, H.B. 118, would widen the scope of immunity to cover all businesses that potentially face such legal claims.

The state Legislature on June 23 overwhelmingly voted in favor of the bill, but Democratic Gov. Roy Cooper has remained mum on whether he plans to sign it into law. He recently vetoed a bill that would've allowed gyms and other fitness facilities to reopen, according to news reports.

Georgia

The Georgia Senate on June 23 advanced legislation that would give all businesses civil immunity to coronavirus-related suits.

H.B. 167 states that "no cause of action shall exist for any transmission of, contraction of, or exposure to COVID-19" unless it was caused by willful misconduct or intentional harm. After the Senate voted 31-19 in favor of the bill, it was sent to a Georgia House Committee for further debate.

Mississippi

Republican-backed legislation that would give premises owners a coronavirus liability shield was advanced by the Mississippi Senate on June 24 with a 39-12 vote.

S.B. 3049 would provide business owners civil immunity from coronavirus exposure suits if they can show they made a good-faith effort to follow applicable public health guidance. Cases of actual malice and intentional misconduct are excluded.

Ohio

The Ohio House of Representatives on May 28 voted overwhelmingly in favor of a bill that would bar individuals from filing civil suits against premises owners and health care providers in connection with injuries or deaths stemming from coronavirus infection or exposure.

Following an 84-9 vote, H.B. 606 was sent to the Ohio Senate for consideration. If enacted, the law would not cover cases of reckless or intentional conduct and would be retroactive to March 9.

--Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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