W.Va. Becomes Latest State With COVID Liability Shield Law

By Hailey Konnath
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Law360 (March 19, 2021, 11:37 PM EDT) -- West Virginia on Friday joined a growing list of states that've enacted a coronavirus liability shield as Gov. Jim Justice, a Republican, signed into law a measure that looks to protect businesses, universities, health care providers and individuals from claims stemming from the virus.

Senate Bill 277, the COVID-19 Jobs Protection Act, also assures businesses that reopening won't expose them to "undue liability for a person's exposure to COVID-19," the governor's office said in a statement.

West Virginia is in the process of reopening a number of its businesses, including restaurants, retailers, office buildings and fitness centers, according to the bill's text. But the threat of liability "poses an obstacle to efforts to reopen and rebuild the West Virginia economy and to provide medical care to impacted West Virginians," the bill reads.

The newly enacted law's purpose is to eliminate the liability of West Virginia residents, health care providers, health care facilities, institutions of higher education, businesses and manufacturers, according to the bill.

The measure was introduced by West Virginia Sen. Craig Blair, R-Berkeley. It passed the state's House of Delegates on March 10 with a 76-24 vote and cleared the senate the next day with a vote of 26-4. Democratic Sens. Michael Caputo, Richard Lindsay, Mike Romano and Bob Beach opposed the bill, according to the legislative record.

In February, Indiana enacted a similar law protecting businesses, schools, emergency workers, health care providers, government entities and other groups from lawsuits alleging they are responsible for coronavirus injuries. That law was authored by Republican senators and signed by GOP Gov. Eric J. Holcomb.

Also last month, GOP Gov. Kay Ivey signed a law protecting Alabama's businesses, churches, schools, health care providers, government entities and other groups from lawsuits alleging they are responsible for the spread of COVID-19 among workers, students or customers.

And Ohio Gov. Mike DeWine, a Republican, in September signed into law H.B. 606, which mandates that individuals, businesses, schools and health care providers can't be held liable for injuries or deaths related to COVID-19 exposure unless it can be established that a defendant committed reckless conduct, intentional misconduct, or willful or wanton misconduct.

In August, Republican Gov. Brian Kemp of Georgia enacted the COVID-19 Pandemic Business Safety Act, which shields businesses and health care providers but doesn't cover cases involving gross negligence or willful misconduct. State legislators this year are expected to extend those protections, which are due to expire in July.

And the Pennsylvania Legislature recently passed similar legislation, but it was vetoed in November by Gov. Tom Wolf, a Democrat, who said the bill created a potential safety risk and went too far in shielding businesses from coronavirus-related claims.

Also on Friday, Justice signed into law a measure that marks it easier for employers to classify workers — especially those in the gig economy — as independent contractors. Senate Bill 272, the Employment Law Worker Classification Act, is intended to "bring certainty and consistency" on the distinction between employees and independent contractors in laws governing workers' compensation, according to the bill's text.

"By doing so, the state will ensure that workers who are indeed 'employees' are properly classified as such and will be afforded the legal protections and obligations that apply to such status, and that workers who desire to be, and meet the standards of being, independent contractors will be entitled to the freedoms that such a relationship provides," the bill reads.

David McMahon, a lawyer and lobbyist for Mountain State Justice, told the Montgomery Herald earlier this month that tens of thousands of West Virginia workers would be reclassified as independent contractors under the law. That means those workers will have a harder time accessing certain protections under state law, McMahon said. 

That measure was also sponsored by Blair.

Blair didn't immediately return a request for comment late Friday.

--Additional reporting by Grace Dixon, Lauren Berg, Y. Peter Kang, Rosie Manins and Matt Fair. Editing by Michael Watanabe.

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