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Alabama

S.B. 30

Enacted: 02/12/2021

  • A covered entity (business, health care provider, educational entity, church, government entity, cultural institution, or its agent) is not liable for any injury, damages, or death in a “health emergency claim” unless the plaintiff proves by clear and convincing evidence of wanton, reckless, willful, or intentional misconduct.
    • A “health emergency claim” is any claim that arises from or related to coronavirus, including, but not limited to: (1) alleged, actual, or feared exposure on a premises or arising from operation, products or services provided off-premises; (2) efforts to prevent or delay the spread of coronavirus, such as testing, monitoring, collecting, reporting, tracking, tracing, disclosing, or investigating exposures or other information, or using or supplying precautionary equipment or supplies, such as personal protective equipment.
    • If liability is established as provided above, a covered entity’s liability is limited to actual economic compensatory damages, except in cases involving serious physical injury
      (48 hours of hospitalization, permanent impairment of a bodily function, or permanent damage to a body structure).
      • Noneconomic damages are not available.
      • Punitive damages are the only recovery available in wrongful death claims.
  • In addition, as a covered entity is not liable for negligence, premises liability, or for any non-wanton, non-willful, or non-intentional civil cause of action, unless the plaintiff shows by clear and convincing evidence that the covered entity did not reasonably attempt to comply with applicable public health guidance. The court decide the applicability of this defense as a matter of law.
    • “Applicable public health guidance” includes a proclamation, order or rule of the Governor, the State Health Officer, or the State Board of Health that is applicable to the type of covered entity and to the health emergency claim at issue. It require compliance with federal guidance or informal guidance provided by state entities.
  • A health care provider is not liable for any injury caused by an act of omission when providing health care services or treatment that resulted from, or was negatively affected by, was negatively impacted by a lack of resources caused by, or was done in response to the pandemic or state’s response to the pandemic. This liability protection does not apply to wanton, reckless, willful, or intentional misconduct.
    • If liability is established as provided above, a health care provider’s liability is limited to actual economic compensatory damages, except in cases involving serious physical injury
      (48 hours of hospitalization, permanent impairment of a bodily function, or permanent damage to a body structure).
      • Noneconomic and punitive damages are not available.
    • The law broadly defines “health care provider” to include state-licensed professionals and facilities, including any facility of pharmacy providing services pursuant to the Governor’s April 2, 2020 proclamation and any medical or health care professional, individual, or entity authorized to practice under the federal Public Readiness and Emergency Preparedness Act.
  • Health emergency claims and claims against health care providers must be filed within two years of the damages, injury, or death.
  • Applies retroactively to causes of action filed on or after March 13, 2020.
    • If a court finds the law’s liability protections applicable to health emergency claims or claims against health care providers, and the liability protections provided via gubernatorial emergency order, do not apply to claims that accrued before the effective date of the Act, then:
      • A covered entity is not liable for negligence, premises liability, or for any non-wanton, non-willful, or non-intentional civil cause of action unless the plaintiff shows clear and convincing evidence that the covered entity did not reasonably attempt to comply with the then applicable public health guidance.
      • A covered entity is not liable for mental anguish or emotional distress or for punitive damages, but may be liable for economic compensatory damages in a cause of action that does not involve serious physical injury.
      • In wrongful death claims, the only damages allowed are punitive damages.
  • The act sunsets on December 31, 2021 or one year after a declared health emergency relating to coronavirus expires, whichever is later. The provisions apply in perpetuity to health emergency claims or claims against health care providers that arise while the Act is effective.

Alaska

SCS CS H.B.76

Enacted: May 1, 2021

  • Liability of state agencies, state employees, and those acting at the government’s request.
    • A state agency or employee is immune from civil and criminal liability for acts performed in good faith based on the authority granted by this Act.
    • A person who performs acts in good faith at the request of a government agency acting on the authority granted by this Act is immune from civil and criminal liability.
    • This immunity does not apply to gross negligence, reckless misconduct, or intentional misconduct.
  • Liability of licensees for client exposure to COVID-19.
    • A person who holds a business or occupational license is immune from disciplinary action for sickness, death, economic loss, and other damages suffered by a client of the licensee from exposure to COVID-19 in the course of the licensee’s practice of the licensee’s trade or profession.
      • Applies to a wide range of professions, such as athletic trainers, concert promoters, dentists, therapists, physicians, nurses, nursing home administrators, pharmacists, real estate agents, social workers, and veterinarians.
    • To qualify for immunity under this section, a licensee must have been practicing the licensee’s trade or profession in substantial compliance with the applicable federal, state, and municipal laws and health mandates in effect at the time of the client’s exposure to COVID-19.
    • This immunity does not apply to exposure to COVID-19 resulting from gross negligence, recklessness, or intentional misconduct.
  • Liability of businesses for customer exposure to COVID-19.
    • A business and employee of a business is immune from civil liability if a customer claims exposure to COVID-19 while patronizing the business resulted in sickness, death, economic loss, or other damages.
    • To qualify for immunity under this section, the business must have been operating in substantial compliance with the applicable federal, state, and municipal laws and health mandates in effect at the time of the client’s exposure to COVID-19.
    • This immunity does not apply to exposure to COVID-19 resulting from gross negligence, recklessness, or intentional misconduct.
  • Application
    • The liability protections are retroactive to March 11, 2020.

FCCS S.B. 241

Enacted: 4/9/2020

  • A health care agent or health care provider who takes action based on a standing order issued by the chief medical officer in the Department of Health and Social Services related to essential public health services and functions for COVID-19 is not liable for civil damages resulting from an act or omission in implementing the standing order.
    • “Health care agent” is defined by current law as an official or employee of the Department of Health and Social Services.
    • “Health care provider” is defined by current law as “any person that provides health care services” and includes “a hospital, medical clinic or office, special care facility, medical laboratory, physician, pharmacist, dentist, physician assistant, nurse, paramedic, emergency medical or laboratory technician, community health worker, and ambulance and emergency medical worker.”
    • Does not apply to gross negligence, recklessness, or intentional misconduct.
    • This section is effective April 10, 2020.
  • 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 PPE in the event of injury or death if the PPE was issued, provided, or manufactured in good faith to respond to the COVID-19 public health disaster emergency.
    • Does not apply to gross negligence, recklessness, or intentional misconduct.
    • A health care provider or manufacturer under this section must notify the user of the PPE that the equipment may not meet established standards and requirements.
    • “Health care provider” has the same definition as above and also includes a nursing home for this section.
    • This section is retroactive to March 11, 2020.
  • A workers’ compensation claim is presumptively compensable as an occupational disease arising out of the course of employment if, during the health disaster emergency, the employee is:
    • A firefighter, emergency medical technician, paramedic, peace officer, or health care provider, is exposed to COVID-19 in the course of this employment, and receives a COVID-19 diagnosis from a physician, presumptive positive test result, or laboratory-confirmed COVID-19 diagnosis.
    • This section is retroactive to March 11, 2020.
  • Increasing a price after the March 11 public health disaster emergency by more than 10% for food, medicine, medical equipment, and fuel sanitation products, hygiene products, essential household supplies, and other essential goods is a violation of the Alaska Unfair or Deceptive Trade Practices and Consumer Protection Act.
    • This provision is retroactive to March 11, 2020.

District of Columbia

Act 23-283

Effective 4/10/2020, as Amended by D.C. Act 23-299, Effective May 1, 2020

  • An existing law, D.C. Code 7-2304.01, authorizes the Mayor, when declaring a public emergency, to issue a public health emergency executive order that exempts licensed health care providers, either from the District of Columbia or from other jurisdictions, from civil liability for damages for any actions taken within the scope of the provider’s employment or voluntary service to implement the provisions of the District of Columbia response plan, except in instances of gross negligence, and solely for actions taken during the public health emergency.
  • The enacted law, which is codified at D.C. Code § 7-311, is specific to COVID-19 treatment and does not require issuance of an executive order to provide liability protection. The statute:
    • Exempts from liability in a civil action, a healthcare provider, first responder, or volunteer who renders care or treatment to a potential, suspected, or diagnosed individual with COVID-19 for damages resulting from such care or treatment of COVID-19, or from any act or failure to act in providing or arranging medical treatment for COVID-19 during a declared public-health emergency;
    • Exempts from liability in a civil action, 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 for damages resulting from such donation during a declared public-health emergency; or
    • Exempts from liability in a civil action, a contractor or subcontractor on a District government contract that has contracted to provide health care services or human care services related to a declared public health emergency related to the District government’s COVID-19 response.
  • The limitation on COVID-19 liability applies to any healthcare provider, first responder, volunteer, or District government contractor or subcontractor of a District government contractor, 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, who:
    • Prescribes or dispenses medicines for off-label use to attempt to combat the COVID-19 virus, in accordance with the federal Right to Try Act.
    • Provides direct or ancillary health-care services or health-care products, including direct patient care, testing, equipment or supplies, consultations, triage services, resource teams, nutrition services, or physical, mental, and behavioral therapies; or
    • Utilizes equipment or supplies outside of the product’s normal use for medical practice and the provision of health-care services to combat the COVID-19 virus.
  • The limitation on COVID-19 liability does not apply to acts or omissions that:
    • Constitute a crime, actual fraud, actual malice, recklessness, breach of contract, gross negligence, or willful misconduct; or
    • Are 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.
  • The statute does not define “healthcare provider,” but another section of the D.C. Code, which government medical malpractice claims, provides a broad definition that includes nursing homes.
  • Applies to acts, omissions, and donations performed or made during the declared public health emergency, and to damages that ensue at any time from acts, omissions, and donations made during the emergency.

Georgia

COVID-19 Pandemic Business Safety Act, S.B. 359

Enacted: August 5, 2020

  • Healthcare facilities, healthcare providers, other entities, or individuals are not liable for a COVID-19 liability claim unless the claimant proves gross negligence, willful or wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
    • A COVID-19 liability claim includes:
      • Premises liability claims. Transmission, infection, exposure, or potential exposure of COVID-19 to a claimant at any healthcare facility or on the premises of any entity, individual, or healthcare provider, resulting in injury to or death of a claimant; or caused by actions of any healthcare provider or individual resulting in injury to or death of a claimant.
      • Medical liability claims. Acts or omissions by a healthcare facility or healthcare provider in arranging for or providing healthcare services or medical care to the claimant resulting in injury or death of the claimant for COVID-19 or where the response to COVID-19 reasonably interfered with the arranging for or the providing of healthcare services or medical care at issue to the claimant.
      • Personal protective equipment claims. Manufacturing, labeling, donating, or distributing PPE or sanitizer that is directly related to providing PPE or sanitizer to claimant by any entity during a public health state of emergency for COVID-19, which departs from the normal manufacturing, labeling, donating, or distributing PPE of such entity that proximately results in injury to or death of a claimant.
  • There is a rebuttable presumption in an action alleging transmission, infection, exposure, or potential exposure to COVID-19 that a claimant assumed that risk when:
    • A receipt or proof of purchase for entry, including an electronic ticket or wristband, includes specific language waiving liability caused by the inherent risk associated with contracting COVID-19 at public gatherings; or
    • The premise owner posts a sign warning that under Georgia law there is no liability for injury or death of a person entering the premise that results from the inherent risks of contracting COVID-19;
    • The actions do not constitute gross negligence, willful or wanton misconduct, reckless infliction of harm, or intentional infliction of harm.

Idaho

Coronavirus Limited Immunity Act, H.B. 6

Enacted: August 27, 2020

Extended by H.B. 149

Enacted: March 19, 2021

  • Provides immunity from civil liability for damages or injury resulting from exposure to coronavirus.
  • Applies to an individual, corporation, limited liability company, partnership, trust, association, church or religious organization, city, county, school district, college, university or other institution of higher education, or other unit of local government.
    • Excludes from coverage any Idaho public health district, the federal government, the state (except colleges, universities, and other institutions of higher education), and foreign governments.
  • Does not apply to an intentional tort or willful or reckless misconduct.
    • Idaho law defines “willful or reckless misconduct” as “conduct in which a person makes a conscious choice as to the person’s course of conduct under circumstances in which the person knows or should know that such conduct both creates an unreasonable risk of harm to another and involves a high probability that such harm will actually result.”
  • Effective immediately.
  • Originally set to expire July 1, 2021. Extended to July 1, 2022.

Indiana

S.B. 1

Enacted: 02/18/2021

  • Exposure claims
    • A person is immune from civil tort liability for damages arising from COVID-19: (1) on the premises owned or operated by the person; (2) on any premises on which the person or an employee or agent of the person provided property or services to another person; or (3) during an activity managed, organized, or sponsored by the person.
      • “Person” is broadly defined and includes an individual, business, state or local government entity, health care provider, or nursing home.
    • Does not apply to gross negligence or willful or wanton misconduct (including fraud and intentionally tortious acts) as proven by clear and convincing evidence.
  • Product liability claims
    • A manufacturer or supplier is immune from civil tort liability for harm that results from the design, manufacture, labeling, sale, distribution, or donation of a COVID-19 protective product.
      • A COVID-19 protective product includes:
        • Personal protective equipment.
        • Medical devices, equipment, and supplies used to treat COVID-19, including medical devices, equipment, or supplies that are used or modified for an unapproved use to treat COVID-19 or to prevent the spread of COVID-19.
        • Medical devices, equipment, and supplies used outside of their normal use to treat COVID-19 or to prevent the spread of COVID-19.
        • Medications used to treat COVID-19, including medications prescribed or dispensed for off label use to attempt to treat COVID-19.
        • Tests to diagnose or determine immunity or exposure to COVID-19.
        • A product designed to clean or disinfect to prevent the spread of COVID-19.
        • Any component of these items.
    • Does not apply to gross negligence or willful or wanton misconduct (including fraud and intentionally tortious acts) as proven by clear and convincing evidence.
  • No class actions
    • Prohibits class action lawsuits based on tort damages arising from COVID-19 or COVID-19 protective products.


  • Application
    • These provisions apply only to tort actions.
    • Retroactively applies to a cause of action that accrues on or after March 1, 2020.
    • Expires December 31, 2024.

Iowa

S.F. 2338

Enacted: 6/18/2020

  • Actual injury requirement. A claim for COVID-19 exposure may not be filed unless it alleges a minimum medical condition (a diagnosis of COVID-19 that requires inpatient hospitalization or results in death), unless the act was intended to cause harm or constitutes actual malice.
  • Limit on premises liability. A person who directly or indirectly invites or permits an individual onto a premises is not liable for any injuries sustained from the individual’s exposure to COVID-19 unless the person (1) recklessly disregards a substantial and unnecessary risk that the individual would be exposed to COVID-19; (2) acted with actual malice; or (3) intentionally exposes the individual to COVID-19.
  • Safe harbor for compliance. A person is not liable for exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in substantial compliance or was consistent with any federal or state statute, regulation, order, or public health guidance related to COVID-19 that was applicable to the person or activity at issue at the time of the alleged exposure.
    1. Public health guidance includes written guidance issued by the CDC, Centers for Medicare and Medicaid Services, OSHA, Office of the Governor, or any state agency.
  • Limit on health care provider liability. A health care provider (including a professional, health care facility, home health care facility, or any other person or facility authorized to administer health care) is not liable for causing or contributing, directly or indirectly, to the death or injury of an individual resulting from the provider’s acts or omissions in support of the state’s response to COVID-19. 
    1. Applies to:
      • An injury or death resulting from screening, assessing, diagnosing, caring for, or treating individuals with COVID-19;
      • Prescribing, administering, or dispensing pharmaceuticals for off-label use to treat a patient with COVID-19; or
      • Acts or omissions while providing health care to individuals unrelated to COVID-19 when care is affected by COVID-19 (includes examples).
    2. Does not apply to reckless or willful misconduct.
  • Product liability protections.
    1. A person that designs, manufactures, labels, sells, distributes, or donates household disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 is not liable in an action alleging personal injury, death, or property damage resulting from:
      • The product’s design, manufacturing, labeling, sale, distribution, or donation; or
      • A failure to provide proper instructions or sufficient warnings.
    2. A qualified product includes:
      • Personal protective equipment used to protect the wearer from COVID-19 or to prevent the spread of COVID-19.
      • Medical devices, equipment, and supplies used to treat COVID-19, including medical devices, equipment, or supplies that are used or modified for an unapproved use to treat COVID-19 or to prevent the spread of COVID-19.
      • Medical devices, equipment, and supplies used outside of their normal use to treat COVID-19 or to prevent the spread of COVID-19.
      • Medications used to treat COVID-19, including medications prescribed or dispensed for off-label use to attempt to treat COVID-19.
      • Tests to diagnose or determine immunity to COVID-19.
      • Any component of these products.
    3. Does not apply if a person:
      • Had actual knowledge of a defect in the product when put to the use for which the product was designed, manufactured, sold, distributed, or donated, and the person recklessly disregarded a substantial and unnecessary risk that the product would cause serious personal injury, death, or serious property damage; or
      • Acted with actual malice.
  • Applies retroactively to January 1, 2020.

Kansas

H.B. 2016, §§ 8-15

Enacted: 6/8/2020

  • The COVID-19 response and reopening for business liability protection act.
  • Healthcare provider liability:
    • A healthcare provider is immune from civil liability for damages, administrative fines or penalties for acts, omissions, healthcare decisions or the rendering of or the failure to render healthcare services, including services that are altered, delayed or withheld, as a direct response to any declared state of disaster emergency related to the COVID-19 public health emergency.
    • Applies to any claims for damages or liability that arise out of or relate to acts, omissions or healthcare decisions occurring during any declared state of disaster emergency related to the COVID-19 public health emergency.
    • Applies to any person or entity that is licensed, registered, certified or otherwise authorized by the state of Kansas to provide healthcare services in this state, including a hospice certified to participate in the Medicare program. 
    • Does not apply to: 
      • Gross negligence or willful, wanton or reckless conduct.
      • Healthcare services not related to COVID-19 that have not been altered, delayed or withheld as a direct response to the COVID-19 public health emergency.
      • An entity licensed under chapter 39, which includes adult care homes, adult family homes, and programs providing care to individuals with disabilities.
  • Adult care facilities
    • Provides an adult care facility with an affirmative defense to liability in a civil action for a COVID-19 exposure claim if the facility:
      • Was caused, by the facility’s compliance with a statute or rule and regulation, to reaccept a resident who had been removed from the facility for treatment of COVID-19; or
      • Treats a resident who has tested positive for COVID-19 in such facility in compliance with a statute or rule and regulation; and
      • Is acting pursuant to and in substantial compliance with public health directives.
  • Defense for compliance with public health directives
    • A person is immune from liability in a COVID-19 exposure claim if the person acted 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.
    • “Public health directives” means any of the following that is required by law to be followed related to public health and COVID-19:
      • State statutes, rules and regulations or executive orders issued by the governor;
      • federal statutes or regulations from federal agencies, including the CDC and OSHA; or 
      • any lawful order or proclamation issued under authority of the Kansas emergency management act, and amendments thereto, by a board of county commissioners, the governing body of a city or a local health officer.
    • Expires January 26, 2021.
  • Product liability
    • A person who designs, manufactures, labels, sells, distributes, provides or donates a qualified product in response to the COVID-19 public health emergency is immune from liability in a civil action alleging a product liability claim arising out of such qualified product if:
      • The product was manufactured, labeled, sold, distributed, provided or donated at the specific request of or in response to a written order or other directive finding a public need for a qualified product issued by the governor, the adjutant general or the division of emergency management; and
      • The damages are not occasioned by willful, wanton or reckless disregard of a known, substantial and unnecessary risk that the product would cause serious injury to others.
    • A “qualified product” includes: 
      • Personal protective equipment used to protect the wearer from COVID-19 or the spread of COVID-19;
      • Medical devices, equipment and supplies used to treat COVID-19, including products that are used or modified for an unapproved use to treat COVID-19 or prevent the spread of COVID-19;
      • Medical devices, equipment or supplies utilized outside of the product’s normal use to treat COVID-19 or to prevent the spread of COVID-19; 
      • Medications used to treat COVID-19, including medications prescribed or dispensed for off label use to attempt to combat COVID-19; 
      • Tests used to diagnose or determine immunity to COVID-19;
      • Disinfecting or cleaning supplies; 
      • Clinical laboratory services certified under the federal clinical laboratory improvement amendments in section 353 of the public health service act;
      • Components of qualified products.

Kentucky

S.B. 5

Enacted: 4/11/2021

  • Premises liability
    • A premises owner or possessor who follows any executive action to prevent the spread of COVID-19 during the declared emergency and either directly or indirectly invites or permits another person to enter the premises does not (1) extend any assurance that the premises are safe from any risk of exposure to COVID-19; (2) owe a duty to protect from or warn about any risk related to or caused by COVID-19; or (3) assume responsibility, or incur liability, for any alleged injury, loss, or damage arising from a COVID-19 claim.
      • An “executive action” includes all orders and guidelines related to a COVID-19 declared emergency issued by the Governor or any state agency, the President of the United States or any federal agency, or a local governmental agency; and Industry-specific guidelines related to a COVID-19 declared emergency adopted by a state agency that govern the industry; but does not include informal or indefinite statements or recommendations made by government officials.
      • An executive action does not create a duty of care.
    • Does not provide liability protection in cases of gross negligence, or wanton, willful, malicious, or intentional misconduct.
    • Does not create a duty of care, relieve any person entering a premises from any obligation he or she may have to exercise care; or affect any right to workers’ compensation benefits or the exclusivity of the workers’ compensation law.
  • Essential service provider liability (includes product liability)
    • An essential service provider is not liable for any COVID-19 claim absent gross negligence, or wanton, willful, malicious, or intentional misconduct.
      • A “COVID-19 claim” is simply defined as “any claim or cause of action for an act or omission arising from COVID-19” during the declared emergency.
    • Essential service providers include:
      • Organizations that provide charitable and social services;
      • Individuals and businesses needed for transportation;
      • Financial institutions;
      • Mail, post, shipping, and pick-up services;
      • Individuals and businesses that produce, supply, prepare, and sell food;
      • Home-based care and services;
      • Individuals and businesses that work in the supply chain for critical medical and pharmaceutical products;
      • Health care providers;
      • Medicaid waiver providers;
      • Elementary and secondary schools, whether public or private;
      • Child care service providers and facilities;
      • Funeral directors, morticians, undertakers, and embalmers;
      • Local government agencies and political subdivisions; and
      • Manufacturers located in the Commonwealth of Kentucky that produced or are producing, or that distributed or are distributing, medical, medicinal, hygienic items such as face masks and hand sanitizers, or other personal protective equipment.
    • Authorizes the Governor via executive order or regulation, or General Assembly via legislation, to declare persons or businesses meeting certain criteria “essential” during the actual happening or any part of the response phase of a disaster or declared emergency.
  • Other Provisions
    • Sets a one-year statute of limitations for any COVID-19 claim for personal injury against a premises owner/possessor or essential service provider.
    • Reduces current liability protection provided to state and local emergency management staff from requiring “malice or bad faith” to allow liability in cases of “gross negligence, or wanton, willful, malicious, or intentional misconduct,” likely for consistency with other provisions of the legislation.
    • Extends liability protection from negligence claims available to those who repurpose property for use in sheltering people during an emergency to apply regardless of whether the person provides the property “voluntarily and without compensation.”
    • Makes a similar change to provide liability protection to a licensed professional engineer who, at the request of government official, assists at the scene of a declared emergency, disaster or catastrophe, regardless of whether the architect is compensated.
  • Application
    • Takes effect immediately and applies retroactively to March 6, 2020.

The liability protections for premise owners and essential service providers sunset on December 31, 2023.

S.B. 150

Enacted: 3/30/2020

  • Health care provider liability
    • A health care provider who cares for or treats a COVID-19 patient in good faith during the state of emergency is not liable for ordinary negligence for any personal injury resulting from that care or treatment, or in providing or arranging further medical treatment.
      • This protection applies so long as the health care provider acts as an ordinary, reasonable, and prudent health care provider would have acted under the same or similar circumstances. 
      • This protection includes (1) prescribing or dispensing medicines for off-label use to attempt to combat COVID-19 in accordance with the federal or state Right to Try Act laws; (2) providing health care services, upon the request of health care facilities or public health entities, that are outside of the provider’s professional scope of practice; or (3) utilizing equipment or supplies outside of the product’s normal use for medical practice and the provision of health care services.
  • Personal protective equipment
    • Any business in the Commonwealth that makes or provides personal protective equipment or personal hygiene supplies in response to COVID-19, such as masks, gowns, or sanitizer, is not liable for ordinary negligence and in product liability claims.
    • This protection applies only if (a) the business does not make or provide such products in the normal course of its business; (b) the business has acted in good faith; and (c) the business acted in an ordinary, reasonable, and prudent manner under the same or similar circumstances.
  • Takes effect immediately. Does not address application to conduct prior to enactment.

Louisiana

LA H.B. 826 (Act No. 336)

Enacted: 6/13/2020

  • Premises liability
    • No person, entity, or government is liable for any civil damages for injury or death resulting from exposure to COVID-19 in the course of providing business operations unless:
      • The person, entity, or government failed to substantially comply with the applicable COVID-19 procedures established by the federal, state, or local agency which governs the business operations; and
      • The injury or death was caused by the person, entity, or government’s gross negligence or wanton or reckless misconduct.
    • If two or more sources of procedures are applicable to the business operations at the time of the actual or alleged exposure, the person, entity, or government satisfies this requirement by substantially complying with any one applicable set of procedures.
  • Event planner liability
    • No person, entity, or government, nor specifically a business event strategist, association meeting planner, corporate meeting planner, independent trade show organizer or owner, or any other entity housing, promoting, producing or otherwise organizing an event of any kind is liable for any civil damages for any injury or death resulting from exposure to COVID-19 resulting from  such activities unless the damages were caused by gross negligence or willful and wanton misconduct.
  • Employer liability
    • Employees who are covered by workers’ compensation cannot bring a tort claim for COVID-19 exposure against his or her employer or any other person potentially liable under the workers’ compensation law unless the exposure was intentional as provided by that law (R.S. 23:1032(B)).
    • Employees who are not covered by workers’ compensation cannot bring a tort claim for COVID-19 exposure against an employer or any other person potentially liable under the workers’ compensation law unless the exposure was caused by an intentional act.
  • Personal protective equipment
    • A person or entity that designs, manufacturers, labels, or distributes personal protective equipment in response to the COVID-19 public health emergency is not liable for an injury or death caused by the product unless caused by gross negligence or willful or wanton misconduct.
    • A person or entity that uses, employs, dispenses, or administers personal protective equipment is not liable for an injury or death resulting from the product unless the person failed to substantially comply with the applicable procedures established by federal, state, or local agencies which govern the personal protective equipment and the injury or death was caused by gross negligence or wanton or reckless misconduct.
      • If two or more sources of procedures are applicable to the business operations at the time of the actual or alleged exposure, the person, entity, or government satisfies this requirement by substantially complying with any one applicable set of procedures.
  • Effective June 13, 2020 and applies retroactively to the declaration of a statewide public health emergency, March 11, 2020.

LA S.B. 435 (Act No. 362) – Premise Liability

Enacted: 6/12/2020

  • Contains a substantively identical premises liability protection as H.B. 826, but codifies the new provision within a statute governing immunity of homeland security and emergency preparedness personnel, R.S. 29:735, rather than as a new section within the Civil Code, R.S. 9:2800.25.
  • Does not apply to “gross negligence, willful misconduct, or intentional criminal misconduct” (H.B. 826 uses “negligence or willful and wanton misconduct”).
  • Does not affect workers’ compensation claims.
  • Effective June 12, 2020, and applies retroactively to the declaration of a statewide public health emergency, March 11, 2020.

LA S.B. 491 (Act No. 303)  – Product Liability

Enacted: 6/12/2020

  • Extends an existing law providing that persons or entities who “gratuitously and voluntarily” provide disaster relief or recovery services in coordination with the state or a political subdivision are not liable to the recipient for any injury, death, or damage to property absent gross negligence or willful misconduct to include providing products.
  • Adds a section providing that a person or entity who renders disaster relief, recovery services, or products “outside the typical course and scope of their operations” in coordination with the federal government, the state, or its political subdivisions is not liable to the recipient for any injury, death, or damage to property resulting from the product except in the event of gross negligence or willful misconduct.

LA S.B. 508 (Act. No. 305) – Restaurant Liability

Enacted: 6/12/2020

  • An owner, operator, employee, contractor, or agent of a restaurant is not liable for COVID-19 infections transmitted through preparation and serving of food during the COVID-19 public health emergency so long as it:
    • Operated in substantial compliance with Proclamation No. 25 JBE 2020 (which declared a state of emergency on March 11, 2020) and any subsequent proclamations and applicable COVID-19 procedures established by a federal, state, or local agency; and
    • The injury or death was not caused by gross negligence or willful and wanton misconduct.
      • If two or more sources of procedures are applicable to the business operations at the time of the actual or alleged exposure, the person, entity, or government satisfies this requirement by substantially complying with any one applicable set of procedures.
  • Applies to dine-in, takeout, drive-through, or delivery throughout the duration of the COVID-19 public health emergency.
  • An employee retains the rights and remedies granted by workers’ compensation.
  • Effective June 12, 2020, and applies retroactively to the declaration of a statewide public health emergency, March 11, 2020.

LA H.B. 59 1st Special Session (Act. No. 9) – Public and Private Schools and Post-secondary Institutions

Enacted: 7/8/2020

  • Public and private schools, postsecondary institutions, and their governing authorities, officers, employees, and agents are not liable for any civil damages for injury or death resulting from or related to actual or alleged exposure to COVID-19 or acts undertaken in the effort to respond to actual or alleged exposure to COVID-19 or the COVID-19 public health emergency. There is no cause of action for contracting COVID-19 at a school or school-sponsored event.
  • This immunity is unavailable if the public or private school violated any procedure mandated by law or by rule or regulation adopted by a federal or state agency and that act or inaction constituted gross negligence or wanton or reckless conduct.
  • Requires the State Board of Elementary and Secondary Education, each public school governing authority, and Board of Supervisors of various postsecondary institutions to adopt minimum  standards, policies, medical exceptions, and regulations to govern the reopening of schools for 2020-21 school year to ensure protection to the extent possible and practical from COVID-19.
  • This liability protection is retroactive to March 11, 2020.

Massachusetts

S. 2640

Enacted: 4/17/2020

  • Health care professionals and facilities are immune from civil liability for any damages allegedly sustained by an act or omission in the course of providing care during the COVID-19 emergency when:
    • The health care provider or facility is arranging for or providing health care services pursuant to a COVID-19 emergency rule and in accordance with otherwise applicable law;
      • A “COVID-19 emergency rule” is an executive order, order of the commissioner of public health, declaration, directive or other state or federal authorization, policy, statement, guidance, rule-making or regulation that waives, suspends or modifies otherwise applicable state or federal law, regulations or standards regarding either: (i) scope of practice or conditions of licensure, including modifications authorizing health care professionals licensed in another state to practice in the commonwealth; or (ii) the delivery of care, including those regarding the standard of care, the site at which care is delivered or the equipment used to deliver care, during the COVID-19 emergency.
      • “Health care services” involve the: (i) treatment, diagnosis, prevention or mitigation of COVID-19; (ii) assessment or care of an individual with a confirmed or suspected case of COVID-19; or (iii) care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency.
    • Arranging for or providing care or treatment of an individual impacted by the health care facility’s or professional’s decisions or activities in response to treatment conditions resulting from the COVID-19 outbreak or COVID-19 emergency rules; and
    • The health care facility or professional is arranging for or providing health care services in good faith.
  • This liability protection does not apply to:
    • Acts or omissions that constitute gross negligence, recklessness or conduct with an intent to harm;
    • Discrimination based on race, ethnicity, national origin, religion, disability, sexual orientation or gender identity by a health care facility or professional providing health care services;
    • Consumer protection actions brought by the attorney general; or
    • False claims actions brought by or on behalf of the Commonwealth.
  • Volunteer organizations are immune from civil liability for any damages occurring in or at the volunteer organization’s facility where the damage arises from use of the facility for the commonwealth’s response and activities related to COVID-19 emergency.
    • Does not apply to gross negligence, recklessness or conduct with an intent to harm.
  • Effective immediately and applies to claims based on acts or omissions that occur or have occurred during the COVID-19 emergency declared March 10, 2020 and until terminated or rescinded.

Michigan

House Bills 6030, 6031, 6032, & 6101

Enacted: October 22, 2020

  • H.B. 6030 provides a regulatory compliance defense in COVID-19 exposure claims. It was part of a package of four bills, all of which were required to pass for any to go into effect.
    • A person is immune from a tort claim related to exposure or potential exposure to COVID-19 when a person acts in compliance with all federal, state, and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm.
    • A COVID-19 claim includes conduct intended to reduce transmission of COVID-19, such as tort claims based on testing or contact tracing, for example.
    • A de minimis deviation from strict compliance unrelated to the plaintiff’s injuries does not deny the person the immunity. 
  • H.B. 6031 is similar to H.B. 6030, providing a regulatory compliance defense for litigation brought under the Michigan Occupational Safety Act.
    • An employer is not liable for an employee’s exposure to COVID-19 under the Michigan OSH Act when the employer operated in compliance with all federal, state, and local statutes, rules, and regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the exposure.
    • A de minimis deviation from strict compliance unrelated to the employee’s exposure does not deny the person the immunity. 
  • H.B. 6032 provides employment protections and responsibilities related to COVID-19 that were a condition of enacting the COVID-19 liability protections.
    • An employer cannot fire, discipline, or retaliate against an employee who (1) does not report to work because the employee has symptoms of COVID-19; (2) opposes a violation of the act; or (3) reports health violations related to COVID-19.
      • An employee can bring a civil action seeking injunctive relief and damages and is entitled to minimum damages of $5,000.
      • An employee who displays symptoms of COVID-19 is not eligible for this protection if he or she does not make reasonable efforts to schedule a COVID-19 test within 3 days of an employer’s request to get tested. 
    • An employee who has the principal symptoms of COVID-19 is prohibited from returning to work until all of these conditions are met: (1) 24 hours have passed since a fever stopped without us of medication; (2) the later of 10 days from when the employee’s symptoms first appeared or the employee’s positive test result; and (3) the employee’s principal symptoms have improved.
    • An employee who has close contact with a person who tests positive for COVID-19 or displays the principal symptoms of COVID-19 is prohibited from returning to work unless either 14 days has passed since close contact or the individual with whom the employee had close contact is determined not to have COVID-19 at the time of contact. This quarantine requirement does not apply to healthcare professionals and workers, first responders, child care workers, adult foster care workers, or correction facilities workers. An 
  • H.B. 6101 defines COVID-19 for purposes of the Michigan Occupational Health and Safety Act as “the novel coronavirus identified as SARS-CoV-2 or a virus mutating from SARS-CoV-2, the disease caused by the novel coronavirus SARS-CoV-2, and conditions associated with the disease.”
  • Each of the bills is retroactive to March 1.

Mississippi

S.B. 3049 Back-to-Business Liability Assurance Act and Healthcare Emergency Response Liability Protection Act

Enacted: July 8, 2020

  • Exposure claims. A person that provides functions or services, or invites or permits any person onto its premises, is immune from a civil action alleging an injury from actual or potential exposure to COVID-19 when the person attempted in good faith to follow applicable public health guidance.
    • If the exposure occurred before applicable public health guidance was available, the person is immune from such a claim.
    • “Public health guidance” includes written guidance issued by a federal or state agency.
  • Medical liability claims. Health care professionals and facilities are immune from any lawsuit alleging an injury or death directly or indirectly sustained because of acts or omissions while providing health care services related to a COVID-19 state of emergency.
    • Includes nonexclusive list of a broad range of health care services that support the state’s response to the COVID-19 state of emergency that fall within the immunity, such as delaying or cancelling non-urgent or elective surgical procedures or using equipment or supplies outside their normal use.
  • Product liability claims.
    • A person that designs, manufactures, labels, sells, distributes, or donates a qualified product in response to COVID-19 is immune from suit for any injuries resulting from actual or potential exposure to COVID-19 caused by the product.
      • A “qualified product” includes:
        • Personal protective equipment used to protect the wearer from COVID-19 or the spread of COVID-19; 
        • Medical devices, equipment, and supplies used to treat a person with COVID-19, including products that are used or modified for an unapproved use to treat COVID-19 or prevent the spread of COVID-19; 
        • Medical devices, equipment, or supplies utilized outside of the product’s normal use to treat a person with COVID-19 or to prevent the spread of COVID-19;
        • Medications used to treat COVID-19, including medications prescribed or dispensed for off-label use to attempt to combat COVID-19;
        • Tests to diagnose or determine immunity to COVID-19 which have been approved by or submitted to the FDA for approval within FDA-prescribed time periods; and 
        • Components of qualified products.
    • A person that designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies or personal protective equipment in response to COVID-19 outside the ordinary course of the person’s business is immune from suit for any injuries resulting from actual or potential exposure to COVID-19 caused by the product.
  • Exception to immunity. The immunities above do not apply where a plaintiff shows, by clear and convincing evidence, that a defendant acted with actual malice or willful, intentional misconduct.
  • Statute of limitations. A person must bring a claim alleging an injury arising from COVID-19 within two years of accrual. Does not apply to claims against a government entity, which are governed by the Mississippi Tort Claims Act.
  • Applicability.
    • The medical liability provisions apply during the state of emergency, during any period of renewal or extension, and terminates one year after the end of the COVID-19 state of emergency.
    • The Act applies retroactively to March 14, 2020 and expires one year after the state of the COVID-19 state of emergency.
    • Any civil liability arising out of acts or omissions that occurred during the operation of the act are subject to its provisions in perpetuity.

Missouri

S.B. 51 and S.B. 42

Delivered to Gov. May 25, 2021

  • Exposure claims.
    • An individual or entity engaged in businesses, services, activities, or accommodations is not liable in a COVID-19 exposure action unless a plaintiff can prove by clear and convincing evidence that: (1) the individual or entity engaged in recklessness or willful misconduct that caused an actual exposure to COVID-19; and (2) the actual exposure to COVID-19 caused the plaintiff’s personal injury.
    • Establishes a rebuttable presumption that a plaintiff assumed the risk of COVID-19 exposure when an individual or entity posts or maintains signs or provides written notice, stating “WARNING: Under Missouri law, any individual entering the premises or engaging the services of the business waives all civil liability against the individual or entity for any damages based on inherent risks associated with an exposure or potential exposure to COVID-19, except for recklessness or willful misconduct.” The sign must be placed in a clearly visible location at the entrance of the business, service, activity, or accommodation.
    • A religious organization is not liable in a COVID-19 exposure action unless the plaintiff can prove intentional misconduct. A religious organization is not required to post a sign or provide the written notice above.
    • Adopting or changing policies, practices, or procedures to address or mitigate the spread of COVID-19 after an actual, alleged, feared, or potential for exposure to COVID-19 may not be used as evidence of liability or culpability.
    • An individual or entity is not subject to liability in a COVID-19 exposure action for the acts or omissions of a third party, unless: (1) the individual or entity had an obligation under general common law principles to control the acts or omissions of the third party; or (2) the third party was an agent of the individual or entity.
    • Establishes a one-year statute of limitations for COVID-19 exposure claims.
  • Medical liability protections.
    • A health care provider is not liable in a COVID-19 medical liability action unless the plaintiff can prove that recklessness or willful misconduct by the health care provider caused the alleged harm, damage, breach, or tort resulting in the personal injury.
      • An elective procedure that is delayed with good cause does not constitute recklessness or willful misconduct.
    • These protections broadly apply to any physician, hospital, health maintenance organization, ambulatory surgical center, long-term care facility, dentist, nurse, optometrist, podiatrist, pharmacist, chiropractor, professional physical therapist, psychologist, physician-in-training, any person authorized to practice consumer directed services, personal care assistance services, or home-based care, any person providing behavioral or mental health services, any person or entity that provides health care services pursuant to a license or certificate, and the respective employers or agents of any such person or entity, and any person, health care system, or other entity that coordinates, arranges for, or addresses issues related to the delivery of health care services.
    • Establishes a two-year statute of limitations for COVID-19 medical liability actions that runs from discovery of the alleged harm, damage, or breach.
  • Products liability protections.
    • An individual or entity who designs, manufactures, imports, distributes, labels, packages, leases, sells, or donates a covered product is not liable in a COVID-19 products liability action if the individual or entity: (1) does not make the covered product in the ordinary course of business; (2) does make the covered product in the ordinary course of business, however the emergency due to COVID-19 requires the covered product to be made in a modified manufacturing process that is outside the ordinary course of business; or (3) does make the covered product in the ordinary course of business and use of the covered product is different than its recommended purpose and used in response to the emergency due to COVID-19.
    • For a plaintiff to prevail in a COVID-19 products liability action over the use or misuse of a covered product, a plaintiff must prove by clear and convincing evidence: (1) Recklessness or willful misconduct by the individual or entity; and (2) That the alleged harm, damage, breach, or tort resulting in the personal injury was caused by the alleged recklessness or willful misconduct.
    • A “covered product” is defined as a pandemic or epidemic product, drug, biological product, device, or an individual component thereof to combat COVID-19, excluding any vaccine or gene therapy.
    • These liability protections:
      • Apply to any claim for damages that has a causal relationship with the administration to or use by an individual of a covered product, including a causal relationship with the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, lease, donation, dispensing, prescribing, administration, licensing, or use of the covered product.
      • Apply only if the covered product was administered or used for the treatment of or protection against COVID-19.
      • Apply regardless of whether a covered product is obtained by donation, commercial sale, or any other means of distribution by or in partnership with federal, state, or local public health officials or the private sector.
      • Do not apply to any fraud in connection with the advertisement of any covered product.
    • Establishes a two-year statute of limitations for a COVID-19 products liability action.
  • Punitive damages restriction.
    • Punitive damage in a COVID-19 related action (exposure, product liability, or health care) cannot exceed nine time the amount of compensatory damages awarded.
  • Scope.
    • The law does not affect claims involving intentional discrimination, breach of contract, business interruption insurance coverage, price gouging, cancelled events, payment of membership fees, refund of tuition, or landlord-tenant disputes.
  • Applicability.
    • Sunsets four years after the effective date of the Act.

Montana

S.B. 65

Enacted: 2/11/2021

  • Premises Liability. In any civil action, a person is not liable for injuries or death from exposure or potential exposure to COVID-19 unless the act or omission constitutes gross negligence, willful and wanton misconduct, or an intentional tort.
    • This standard applies to claims against a person who possesses or controls property who directly or indirectly invites or permits an individual onto a premise. A premises includes any real property and any appurtenant building or structure, as well as any other location, vehicle, or place, serving a commercial, residential, educational, religious, governmental, cultural, charitable, or health care purpose.
  • Health care liability. A health care provider (broadly defined to include professionals and facilities, including nursing homes and other senior care) is not liable for causing or contributing, directly or indirectly, to the death or injury of an individual as a result of acts or omissions while providing or arranging health care in support of the response to COVID-19 unless the act or omission constitutes gross negligence, willful and wanton misconduct, or an intentional tort. This includes:
    • An injury or death resulting from screening, assessing, diagnosing, caring for, or treating individuals with a suspected or confirmed case of COVID-19;
    • Prescribing, administering, or dispensing a pharmaceutical for off-label use to treat a patient with a suspected or confirmed case of COVID-19;
    • Acts or omissions while providing health care to individuals with a condition unrelated to COVID-19 when those acts or omissions support the response to COVID-19, including:
      • Delaying or canceling nonurgent or elective dental, medical, or surgical procedures, or altering the diagnosis or treatment of an individual in response to a federal or state statute, regulation, order, or public health guidance;
      • Diagnosing or treating patients outside the normal scope of the health care provider’s license or practice;
      • Using medical devices, equipment, or supplies outside of their normal use for the provision of health care, including using or modifying medical devices, equipment, or supplies for an unapproved use;
      • Conducting tests or providing treatment to an individual outside the premises of a health care facility;
      • Acts or omissions undertaken because of a lack of staffing, facilities, medical devices, equipment, supplies, or other resources attributable to COVID-19 that renders the health care provider unable to provide the level or manner of care to a person that otherwise would have been required in the absence of COVID-19; or
      • Acts or omissions undertaken by a health care provider relating to the use or nonuse of personal protective equipment.
  • Product liability. A person who designs, manufactures, labels, sells, distributes, or donates household disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 is not liable in a civil action alleging personal injury, death, or property damage caused by or resulting from that activity unless the person’s act or omission that constitutes gross negligence, willful and wanton misconduct, or an intentional tort caused the injury. This standard also applies to claims alleging a failure to provide proper instructions or sufficient warnings.
    • A “qualified product” includes personal (a) personal protective equipment and supplies used to treat or prevent the spread of COVID-19; (b) medical devices, equipment, and supplies used to treat COVID-19, including medical devices, equipment, and supplies that are used or modified for an unapproved use to treat COVID-19 or to prevent its spread; (c) medical devices, equipment, and supplies used outside of their normal use to treat or prevent the spread of COVID-19; (d) medications used to treat COVID-19, including medications prescribed or dispensed for off-label use attempt to treat COVID-19; (e) tests to diagnose or determine immunity to COVID-19; and (f) a component of these items.
  • Safe harbor. Establishes an affirmative defense when a person took reasonable measures consistent with a federal or state statute, regulation, order, or public health guidance related to COVID-19 applicable to the person or activity at issue at the time of the alleged injury, death, or property damage. If two or more sources of public health guidance are applicable, a person does not breach a duty of care if the person took reasonable measures consistent with one applicable set of guidance. Proving the affirmative defense is a complete bar to any action relating to COVID-19. This section does not impose liability on a person for failing to comply with a federal or state statute, regulation, order, or public health guidance related to COVID-19.
  • No new causes of action. A government order, regulation, or public health guidance related COVID-19 does not create a new cause of action against any person.
  • Conduct of a third party does not provide basis for liability.
    • If a federal or state statute, regulation, order, or public health guidance recommends or requires the use of a face mask, a person is not required to ensure face masks are being used or a face mask is sufficient to stop the spread of COVID-19 to meet the standard of care.
    • If a federal or state statute, regulation, order, or public health guidance recommends or requires temperature checks, a person is not required to conduct temperature checks before allowing a person to enter a premises if an individual entering the premises refuses to allow a temperature check.
    • If a federal or state statute, regulation, order, or public health guidance related to COVID-19 recommends or requires a vaccine, an individual is not required to receive a vaccine and a person is not required to ensure employees or agents are vaccinated to meet the standard of care.
  • The law is effective upon approval, February 11, 2021, applies prospectively, and terminates on January 1, 2031.

Nebraska

COVID-19 Liability Act, LB 139

Enacted: May 25, 2021

  • The COVID-19 Liability Act (exposure liability protection). A person may not seek recovery for any injuries or damages from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care was in substantial compliance with any federal public health guidance that was applicable to the person, place, or activity at issue at the time of the alleged exposure or potential exposure.
    • Federal public health guidance includes written or oral guidance related to COVID-19 issued by the Centers for Disease Control and Prevention, the Centers for Medicare and Medicaid Services, or the Occupational Safety and Health Administration.
    • Does not impact workers’ compensation claims, other immunity or limit on liability, or waive sovereign immunity.
    • Applies to claims filed on or after May 25, 2021.
  • The Health Care Crisis Protocol Act
    • Each hospital must have a health care crisis protocol, which must be available for public inspection and posted on the Department of Human Services website.
    • A health care crisis protocol is a plan for triage and the application of medical services and resources for critically ill patients in the event that the demand for medical services and resources exceeds supply as a result of a pervasive or catastrophic disaster as provided in the Health Care Crisis Protocol for the State of Nebraska published by the Nebraska Medical Emergency Operations Center, dated May 10, 2021.
    • A hospital may activate a health care crisis protocol only in extraordinary circumstances when the level of demand for medical services and resources exceeds the available resources required to deliver the generally accepted standard of care and crisis operations will be in effect for a sustained period.
    • The health care crisis protocol does not change or alter the standard for malpractice or professional negligence for health care providers.

Nevada

S.B. 4 §§ 24-29, 39

Enacted: 8/11/2020

  • Any civil action alleging personal injury or death as a result of exposure to COVID-19 while on an premises or during an activity managed by an entity:
    • The complaint must plead with particularity.
    • The court determines as a matter of law whether an entity was in substantial compliance with controlling health standards at the time of the alleged exposure. The plaintiff has the burden of proving the business was not in substantial compliance.
      • “Controlling health standards” includes federal, state or local law, or a written order or other document published by a federal, state, or local government or regulatory body that is related to COVID-19 and prescribed the manner in which an entity must operate at the time of the alleged exposure.
      • Substantial compliance” is defined as good faith efforts to help control the spread of COVID 19 in conformity with controlling health standards. An entity may demonstrate substantial compliance by establishing policies and procedures to enforce and implement the controlling health standards in a reasonable manner. Isolated or unforeseen events of noncompliance with the controlling health standards do not demonstrate noncompliance.
    • If an entity operated in substantial compliance with controlling health standards, it is not liable for a COVID-19 exposure claim unless the entity violated controlling health standards with gross negligence and that gross negligence was the proximate cause of the person’s injury or death.
    • If an entity did not operate in substantial compliance with controlling health standards, there is no liability protection.
    • An “entity” that qualified for the liability protection includes businesses, government entities, or nonprofit organizations, and their officers or employees. However, the bill excludes from protection:
      • Nursing homes, hospices, intermediate care facilities, skilled nursing facilities, hospitals, independent centers for emergency care.
      • Any public school offering preschool, kindergarten, or grades 1 through 12.
  • These liability protections and procedures apply to any cause of action that accrues before, on, or after the effective date of the bill (August 11, 2020). The protections expire the later of the date on which the governor terminates the COVID-19 emergency declaration issued on March 12, 2020 or July 1, 2023.

New Jersey

S.B. 3584

Enacted: July 1, 2021

  • Provides that a planned real estate development is immune from civil liability for damages arising from, or related to, an exposure to, or transmission of, COVID-19 on its premises, so long as the planned real estate development has prominently displayed at the entrance of any communal space shared by the planned real estate development’s residents and their guests, such as pools, gyms, and clubhouses, a sign stating the following warning:
    • “ANY PERSON ENTERING THE PREMISES WAIVES ALL CIVIL LIABILITY AGAINST THE PLANNED REAL ESTATE DEVELOPMENT FOR DAMAGES ARISING FROM, OR RELATED TO, AN EXPOSURE TO, OR TRANSMISSION OF, COVID-19 ON THE PREMISES, EXCEPT FOR ACTS OR OMISSIONS CONSTITUTING A CRIME, ACTUAL FRAUD, ACTUAL MALICE, GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT.”
  • A “planned real estate development” includes any real property situated within the State, whether contiguous or not, that consists of, separately owned areas, irrespective of form, and which are offered or disposed of pursuant to a common promotional plan, and provide for common or shared elements or interests in real property. It does not include any form of timesharing.
  • Does not apply to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.
  • Does not limit or modify any workers’ compensation claim.
  • Expires January 1, 2022.

S.B. 2333 

Enacted: 4/14/2020

  • A health care professional, facility, or system is immune from civil liability for any injury alleged to have been sustained from an act or omission undertaken in the course of providing medical services in support of the state’s response to coronavirus.
  • This immunity also includes any act or omission undertaken in good faith to support of efforts to treat COVID-19 patients and to prevent the spread of COVID-19 during the public health emergency, including in telemedicine or telehealth, and diagnosing or treating patients outside the normal scope of the health care professional’s license or practice.
  • The immunity does not apply to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.
  • A healthcare facility or system, and its agents, employers, and volunteers, are not criminally or civilly liable for damages for injury or death allegedly sustained as a result of an act or omission during the public health emergency in connection with the allocation of mechanical ventilators or other scarce medical resources, if the health care facility or system adopts and adheres to a scarce critical resource allocation policy that at minimum incorporates the core principles identified by the Commissioner of Health in an executive directive or administrative order.
  • Applies retroactively to March 9, 2020, when Governor Murphy declared a public health emergency.

New York

N.Y. S. 7506 / A. 9506

Enacted: 4/3/2020

  • A health care facility or professional is immune from civil or criminal liability for any harm alleged to have been sustained as a result of an act or omission in the course of arranging for or providing medical services, if:
    • The health care facility or professional acts pursuant to a COVID-19 emergency rule or other applicable law;
    • Its care 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 in support of the state’s directives; and
    • The health care facility or professional acts in good faith.
  • This immunity does not apply if the harm was caused by a healthcare facility’s or professional’s willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. Omissions or decisions resulting from a resource or staffing shortage does not fall within this exception.
  • A volunteer organization is immune from civil or criminal liability for any harm occurring in or at its facilities arising from the state’s response and activities under the COVID-19 emergency declaration and in accordance with any applicable COVID-19 emergency rule. This immunity does not apply if the harm resulted from the organization’s willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.
  • Takes effect on March 7, 2020 and applies to a harm that occurred on or after the date of the emergency declaration until the declaration expires.

NY S. 8835

Enacted: 8/3/2020

  • Narrows the scope of S. 7506’s liability protections to apply only when a health care facility or medical professional is providing direct care related to the diagnosis or treatment of COVID-19 and the care is impacted by COVID-19 by eliminating liability protection when:
    • health care services relate to “prevention” of COVID-19, rather than treating COVID-19;
    • care involves treatment of a condition other than COVID-19 during the emergency declaration;
    • the act or omission involved “arranging for,” rather than providing, health care services.
  • Takes effect immediately, applies to acts or omissions that occurred on or after the effective date, and does not apply to acts or omissions occurring after expiration of the COVID-18 emergency declaration.

North Carolina

NC S.B. 704, Emergency or Disaster Treatment Protection Act

Enacted: May 4, 2020

  • Provides immunity to health care facilities, health care providers, and entities that have legal responsibility for the acts or omissions of health care providers when they act in good faith and the arrangement or provision of health care services has been impacted by a decision or activity flowing from the COVID-19 pandemic. 
    • Does not apply to acts or omissions that constitute gross negligence, reckless misconduct, or intentional infliction of harm. 
    • Acts, omissions, and decisions resulting from resource or staffing shortages do not fall within this exception.
  • Provides liability protections to volunteer organizations that have volunteered their facilities to support the state’s COVID-19 response.
    • Does not apply to gross negligence, reckless misconduct, or intentional infliction of harm.
  • Essential businesses are not subject to liability for harms to customers or employees who contract COVID-19. 
  • An emergency response entity is not subject to liability with respect to claims from a customer, user, or consumer for injuries or death resulting from the COVID-19 pandemic or while doing business with the emergency response entity. 
    • These immunities do not apply to injuries or death caused by an act or omission of the essential business or emergency response entity constituting gross negligence, reckless misconduct, or intentional infliction of harm. 
    • Employees of essential businesses or emergency response entities are not precluded from seeking workers’ compensation benefits for an injury or death alleged to be the result of contracting COVID-19 while employed by the essential businesses or emergency response entity.
  • Application
    • Healthcare and volunteer liability protections apply to acts or omissions after the Governor’s COVID-19 emergency declaration.
    • The essential business emergency response protections apply to acts or omissions occurring from the issuance of the state’s COVID-19 essential business executive order until the COVID-19 emergency declaration ends.

NC H. 118 COVID-19 Limited Immunity

Enacted: July 2, 2020

  • No person is liable for contraction of COVID-19 in absence of gross negligence, willful or wanton conduct, or intentional wrongdoing. 
  • Every person must provide reasonable notice of the actions taken on the premises for reducing the risk of transmission of COVID-19, but there is no liability for failing to comply with the actions contained in the notice.
  • Does not affect workers’ compensation claims.
  • Effective immediately and does not apply to claims arising 180 days after the expiration or rescission of the state of emergency declared on March 10, 2020. 

North Dakota

H.B. 1175

Enacted: April 23, 2021

  • Exposure claims.
    • General standard. A person may not bring or maintain a civil action alleging exposure or potential exposure to COVID-19 unless the civil action involves an act intended to cause harm or an act that constitutes actual malice.
    • Premise liability. A person that possesses, owns, or is in control of premises who invites or permits an individual onto the premises is immune from civil liability for any act or omission resulting in damage or injury sustained from the individual’s exposure to COVID-19, unless the person (1) exposes the individual with actual malice; or (2) intentionally exposes the individual with the intent to cause harm.
    • Safe harbor. A person is immune from civil liability for an act or omission resulting in damage or injury sustained from exposure or potential exposure to COVID-19 if the act or omission was in substantial compliance or was consistent with a federal or state statute, regulation, or order related to COVID-19 that was applicable to the person or activity at issue at the time of the alleged exposure or potential exposure.
  • Health care liability.
    • A health care provider or facility is immune from civil liability for any act or omission in response to COVID-19 that causes or contributes, directly or indirectly, to the death or injury of an individual.
    • This immunity includes:
      • Injury or death resulting from screening, assessing, diagnosing, caring for, triaging, or  treating an individual with a suspected or confirmed case of COVID-19.
      • Prescribing, administering, or dispensing a pharmaceutical for off-label use to treat or prevent a suspected or confirmed case of COVID-19.
      • An act or omission while providing a health care service to an individual unrelated to COVID-19 if the act or omission supports the state’s response to COVID-19, such as delaying or canceling non-urgent or elective procedures, use or nonuse of personal protective equipment, or an act or omission undertaken because of a lack of staff, facility, medical device, treatment, equipment, or other  resource, attributable to COVID-19 that renders the provider or facility unable to provide the level or manner of care that otherwise would have been required in the absence of COVID-19.
    • This immunity does not extend to willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
      • “Reckless” means conduct engaged in a conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct.
      • “Willful” means conduct engaged in intentionally, knowingly, or recklessly.
  • Product liability.
    • A person that designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 is immune from civil liability for any personal injury, death, or property damage caused by or resulting from that conduct or from failing to provide proper instructions or sufficient warnings.
    • This immunity does not apply if the person had (1) actual knowledge of a defect in the product when put to the use for which the product was designed, manufactured, sold, distributed, or donated; and (2) the person recklessly disregarded a substantial and unnecessary risk the product would cause serious personal injury, death, or serious property damage; or (3) the person acted with actual malice.
  • Exceptions. These provisions do not apply to an enforcement action brought for Medicaid fraud, under antitrust law, or for unlawful sales or advertising practices.
  • Application. Applies retroactively to January 1, 2020.

Ohio

Am. Sub. H.B. 606

Enacted: September 14, 2020

  • Health care liability. 
    • A health care provider that provides health care 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 any of the following:
      • An act or omission of the health care provider in the health care provider’s provision withholding, or withdrawal of those services;
      • Any decision related to the provision, withholding, or withdrawal of those services;
      • Compliance with an executive order or director’s order issued during and in response to the disaster or emergency.
    • Does not apply in a tort action if the health care provider’s action, omission, decision, or compliance constitutes a reckless disregard for the consequences so as to affect the life or health of the patient or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought.
      • “Reckless disregard” is defined as “conduct by which, with heedless indifference to the consequences, the health care provider disregards a substantial and unjustifiable risk that the health care provider’s conduct is likely to cause, at the time those services or that treatment or care were rendered, an unreasonable risk of injury, death, or loss to person or property.”
    • Does not apply in a professional disciplinary action if the health care provider’s action, omission, decision, or compliance constitutes gross negligence.
      • “Gross negligence” is defined as “a lack of care so great that it appears to be a conscious indifference to the rights of others.”
    • Prohibits class actions when the immunity above does not apply.
    • A health care provider 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 because the provider was unable to treat, diagnose, or test the person for any illness, disease, or condition, including the inability to perform any elective procedure, due to an executive or director’s order or an order of a board of health of a city or general health district issued in relation to an epidemic or pandemic disease or other public health emergency.
    • Does not grant an immunity from tort or other civil liability or a professional disciplinary action to a health care provider for actions that are outside the skills, education, and training of the health care provider, unless the health care provider undertakes the action in good faith and in response to a lack of resources caused by a disaster or emergency.
    • Broadly applies to health care professionals, providers, workers, facilities, and services, including nursing homes.
  • Exposure claims.
    • Precludes a civil action for damages for injury, death, or loss to person or property against any person if 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.
    • Does not apply if the exposure, transmission, or contraction resulted reckless conduct or intentional misconduct or willful or wanton misconduct.
      • Defines “reckless conduct” as “conduct by which, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations. A person is reckless . . . when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.”
    • Prohibits class actions when the immunity above does not apply.
    • A government order, recommendation, or guideline does not create a duty of care upon any person that may be enforced in a cause of action or that may create a new cause of action or substantive legal right against any person. Provides a presumption that a government order, recommendation, or guideline is not admissible as evidence that a duty of care, a new cause of action, or a substantive legal right has been established.
  • Application. Both the healthcare and exposure liability provisions apply retroactively to the state of emergency declared on March 9, 2020 through September 30, 2021.

Oklahoma

OK S.B. 300 – COVID-19 Public Health Emergency Limited Liability Act

Enacted: 5/12/2020

  • A health care facility or provider is immune from civil liability for any loss to a person with a suspected or confirmed diagnosis of COVID-19 caused by an act or omission during the COVID-19 public health emergency first declared on March 15, 2020.
  • Applies if the act or omission occurred in the course of arranging for or providing COVID-19 health care services for the treatment of the person who was impacted by the decisions, activities or staffing of, or the availability or capacity of space or equipment by, the health care facility or provider in response to or as a result of the COVID-19 public health emergency.
  • Does not apply to gross negligence or willful or wanton misconduct.
  • Does not apply to health care services provided to a person who did not have a suspected or confirmed diagnosis of COVID-19.
  • Effective immediately and applies to any civil action filed on or after the effective date.
  • Remains in effect until October 31, 2020 or until the Governor affirmatively concludes the public health emergency, whichever is later.

OK S.B. 1946

Enacted: 5/21/2020

  • A person is not liable in an action claiming an injury from exposure or potential exposure to COVID-19 if the act or omission alleged to violate a duty of care complied or was consistent with federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time of the alleged exposure.
  • “Guidance” is defined as written guidelines related to COVID-19 issued by the Centers for Disease Control and Prevention, Occupational Safety and Health Administration of the United States Department of Labor, Oklahoma State Department of Health, the Oklahoma Department of Commerce, or any other state agency, board or commission.
  • Takes effect immediately and applies to civil actions filed on or after the effective date.

OK S.B. 1947 – COVID-19 Product Protection Act

Enacted: 5/21/2020

  • A person that designs, manufacturers, labels, sells, distributes, or donates disinfecting and cleaning supplies or personal protective equipment during and in response to the COVID-19 public health emergency is not liable for injuries or damage caused by the product’s manufacturing or design, or a failure to provide proper instructions or sufficient warnings.
    • Applies only to those who do not make such products in the ordinary course of business.
  • A government entity, health care facility, health care provider, first responder, or any business, or the employer or agent of that business, that utilizes a product meeting the qualifications above is not liable for injuries resulting from the selection, distribution, or use of such product.
  • Does not apply if a person had actual knowledge that a product was defective when put to the use for which the product was manufactured, sold, distributed, or donated, and acted with deliberate indifference to or conscious disregard of a substantial and unnecessary risk that the product would cause serious injury to others, or acted with a deliberate intention to cause harm.
  • Applies to any claim arising on or after the emergency declaration of March 15, 2020.

Pennsylvania

H.B. 1737

Vetoed by Gov. Tom Wolf (D): November 30, 2020

With respect to COVID liability, the bill would have provided:

  • Schools and child care.  A school or child care facility would not be liable for damages or personal injury for actual or alleged exposure to COVID-19 unless there is clear and convincing evidence that it was grossly negligent or reckless, or engaged in willful misconduct or intentionally inflicted harm. An act or omission that complies with public health directives, or is taken in good faith belief that it complies, does not meet this standard.
  • A “public health directive” includes orders or guidelines issued by the federal or state government regarding (1) manufacturing or use of PPE during a declared emergency, (2) treatment of individuals with or reasonably believed to have COVID-19, and (3) steps necessary to prevent, limit, or slow the spread of COVID-19.
  • Business or government services.
  • Same liability protection as schools and child care.
  • “Business or government” services includes any lawful activity conducted by a trade, business, nonprofit organization, or local government unit that is permitted by a proclamation of disaster emergency to hold itself out as open to members of the public (so long as it is legally open during the pandemic).
  • PPE, Sanitizers and Disinfectants.
  • When donated or sold at cost. A person that makes, distributes, labels, or donates PPE is not civilly liable for damage to property or personal injury related to actual or alleged exposure to COVID-19 during a declared emergency if the product is donated or sold at cost to a charitable organization, or the state or local government, unless there is clear and convincing evidence that the person was grossly negligent or reckless, or engaged in willful misconduct or intentionally inflicted harm. As above, an act or omission at issue that complies with public health directives, or is taken in good faith belief that it complies, does not meet this standard.
  • When otherwise provided. If PPE is not donated or sold at cost, the same higher standard applies if the person commenced manufacturing, distributing or labeling the PPE (1) only in connection with the declared emergency (the business doesn’t ordinarily make the PPE) OR (2) in accord with the same standards as before the emergency unless the equipment is labeled otherwise (I’m uncertain as to what this second option is intended to cover).
  • When used. A person that uses or employs PPE during the emergency in compliance with public health directives related to PPE is not liable unless for claims related to the use of the PPE unless there is clear and convincing evidence that the person was grossly negligent or reckless, or engaged in willful misconduct or intentionally inflicted harm. As above, an act or omission at issue that complies with public health directives, or is taken in good faith belief that it complies, does not meet this standard.
  • Covered products. PPE is defined as including a device, equipment, substance or material recommended by the CDC, FDA, EPA, Homeland Security, or other federal agency or the PA Department of Health to prevent, limit, or slow the spread of COVID–19, such as respirators, masks, surgical apparel, gowns, gloves, and other apparel intended for medical purposes and includes sanitizers and disinfectants.
  • Healthcare providers.
  • Provides liability protection to “covered providers” which includes certain medical professions and facilities.
  • Same liability standard as schools, childcare, businesses, and government services (liability only if clear and convincing evidence that it was grossly negligent or reckless, or engaged in willful misconduct or intentionally inflicted harm).
  • Applies to any treatment or testing for COVID-19 to COVID-19 patients; any act/omission resulting from a shortage of equipment, supplies or personnel that resulted from COVID-19; or compliance with public health directives.

Why would H.B. 1737 have been better than Pennsylvania’s Executive Orders?

  • The May Exec Order provided limited civil immunity to health care providers and property owners who donate the use of their property to support response to the COVID-19 pandemic.  It does not extend to healthcare facilities. It does not cover healthcare professionals providing non-COVID treatment, even if impacted by the pandemic. Business and civil justice groups such as the Pennsylvania Coalition for Civil Justice Reform criticized the order for being “one of the weakest in the nation.”
  • The November Exec Order only protects businesses when enforcing a state order requiring universal face coverings. This offers very limited liability protection and the orders include exceptions that may still result in liability when enforcing the face covering requirement (businesses must provide reasonable accommodation if a person claims he or she cannot wear a mask due to a medical condition, for example).

South Carolina

S. 147

Enacted: April 28, 2021

  • Safe harbor for exposure, healthcare, and product liability claims. A covered entity or individual that reasonably adheres to public health guidance applicable at the time the conduct occurs is immune from liability for any acts or omissions resulting in a coronavirus claim.
    • A “coronavirus claim” includes:
      • An actual, alleged, or feared exposure to or contraction of coronavirus:
        • from the premises of a covered entity;
        • from the operations, products, or services provided on-premises or off-premises for a covered entity; or
        • from the acts or omissions of a covered individual or covered entity, to include the delay or withholding of medical care for the treatment or diagnosis of the coronavirus;
      • Prescribing or dispensing medicines for off-label use to attempt to combat coronavirus;
      • Providing of health care services related to the coronavirus that are outside of a provider’s professional scope of practice; or
      • Utilizing equipment or supplies to combat or treat the coronavirus in a manner outside of the equipment’s or supplies’ normal use in medical practice or in the provision of health care services; or
      • Manufacturing or donating of precautionary equipment or supplies, including personal protective equipment, due to shortages that occurred during the pandemic.
    • The protection applies to any business, government entity, or health care facility or provider, and any director, officer, employee, agent, contractor, third-party worker, or other representative of that entity.
  • Exception. The liability protection does not apply to grossly negligent, reckless, willful, or intentional misconduct; or a failure to make any attempt to adhere to public health guidance. A claimant must make this showing by clear and convincing evidence, except in medical liability claims, where the standard is a preponderance of the evidence.
  • The legislation does not preclude an insured’s claim against an insurer’s business interruption insurance policy.
  • Retroactive application. Applies to all civil and administrative causes of action that arise between March 13, 2020, and June 30, 2021, or 180 days after the final state of emergency is lifted for COVID-19, whichever is later, and that are based upon facts that occurred during this period.

South Dakota

H.B. 1046

Enacted: 02/17/2021

  • Exposure claims
    • A person may not bring an action alleging exposure or potential exposure to COVID-19 unless the exposure results in a COVID-19 diagnosis and the exposure is the result of intentional exposure with the intent to transmit COVID-19.
    • In alleging intentional exposure with the intent to transmit COVID-19, a party 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.
    • These requirements also explicitly apply to premises liability claims.
  • Medical liability claims
    • A health care provider is not liable for any damages for causing or contributing, directly or indirectly, to the death or injury of a person as a result of the health care provider’s acts or omissions in response to COVID-19.
    • Broadly applies to any health care professional or health care provider.
    • This liability protection applies to a wide range of conduct, such as treating individuals with confirmed or suspected COVID-19 cases, prescribing medications for off-label use to treat COVID-19, an acts of omissions while providing healthcare to persons unrelated to COVID-19 when the act or omission supports the state’s response to COVID-19.
    • Does not apply to gross negligence, recklessness, or willful misconduct.
  • Product liability claims
    • Any person that designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 is not liable in a civil action alleging personal injury, death, or property damage caused by or resulting from the design, manufacturing, labeling, selling, distributing, or donating of the product or a failure to provide proper instructions or sufficient warnings.
      • A “qualified product” includes:
        • Personal protective equipment used to protect the wearer from COVID-19 or to prevent the spread of COVID-19;
        • Medical devices, equipment, and supplies used to treat COVID-19, including medical devices, equipment, or supplies that are used or modified for an unapproved use to treat COVID-19 or to prevent the spread of COVID-19;
        • Medical devices, equipment, and supplies used outside of their normal use to treat COVID-19 or to prevent the spread of COVID-19;
        • Medications used to treat COVID-19, including medications prescribed or dispensed for off-label use to attempt to treat COVID-19;
        • Tests to diagnose or determine immunity to COVID-19; or
        • Any component of the items above.
    • Does not apply to gross negligence, recklessness, or willful misconduct.
  • Retroactive application
    • Applies to any exposure, injury, latent injury, damages claim, cause of action, or loss that occurs, accrues, or begins, whether known or unknown, or latent between January 1, 2020 and December 31, 2022.

Tennessee

COVID-19 Recovery Act, S.B. 8002

Enacted: 8/17/2020

  • Provides liability protections for claims “arising from COVID-19” which means injuries caused or resulted from actual, alleged, or possible exposure to or contraction of COVID-19, or caused by or resulting from services, treatment, or other actions in response to COVID-19. The scope of the Tennessee law is broadly worded to include premises liability, product liability, and medical liability claims, including:
    • Implementing policies and procedures to prevent or minimize the spread of COVID-19;
    • Testing;
    • Monitoring, collecting, reporting, tracking, tracing, disclosing, or investigating COVID-19 related information;
    • Using, designing, manufacturing, providing, donating, or servicing precautionary, diagnostic, collection, or other health equipment or supplies, such as personal protective equipment;
    • Closing or partially closing to prevent or minimize the spread of COVID-19;
    • Delaying or modifying the schedule or performance of any medical procedure; or
    • Providing services or products in response to government appeal or repurposing operations to address an urgent need for personal protective equipment, sanitation products, or other products necessary to protect the public.
  • A claim alleging loss, injury, or death from COVID-19 must prove by clear and convincing evidence that the injury was caused by gross negligence or willful misconduct.
  • In COVID-19 cases brought against the state under the Tennessee Governmental Tort Liability Act, a claimant must prove by clear and convincing evidence that injury was caused by the state or a state employee’s gross negligence.
    • In COVID-19cases brought against an employee if a government entity, a claimant must prove by clear and convincing evidence that the employee’s act or omission was willful, malicious, criminal, or performed for personal gain. The pleading standard and certificate of good faith requirements above also apply.
  • Limits the liability of public institutions of higher education for any loss, damage, injury, or death arising from COVID-19 by requiring a claimant to prove by clear and convincing evidence that the injury was caused by gross negligence or willful misconduct.
  • All claims above must be filed in a verified complaint pleading specific facts with particularity.
  • Any claim alleging exposure to or contraction of COVID-19 must include a certificate of good faith stating that the claimant or claimant’s counsel has consulted with a physician duly licensed to practice in the state or a contiguous bordering state, and the physician has provided a signed written statement that the physician is competent to express an opinion on exposure to or contraction of COVID-19 and believes the injury was caused by an alleged act or omission of the defendant.
  • Takes effect immediately and applies to all claims arising from COVID-19, except those which, on or before August 3, 2020: (1) a complaint or civil warrant was filed; (2) a notice of a claim was with the Tennessee claims commission; or (3) notice was satisfied under the laws pertaining to healthcare liability claims.
  • Sunsets on July 1, 2022, but continues to apply to any loss, illness, injury, or death occurring before that date where otherwise applicable.

Texas

S.B. 6

Sent to Gov. June 1, 2021

  • Liability protection from exposure claims
    • A person is not liable for injury or death caused by exposing an individual to a pandemic disease during a pandemic emergency unless a plaintiff establishes that:
      • The person who exposed the individual:
        • Knowingly failed to warn the individual of or remediate a condition that the person knew was likely to result in the exposure of an individual to the disease, provided that the person:
          • Had control over the condition;
          • Knew that the individual was more likely than not to come into contact with the condition; and
          • Had a reasonable opportunity and ability to remediate the condition or warn the individual of the condition before the individual came into contact with the condition; or
        • Knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols intended to lower the likelihood of exposure to the disease that were applicable to the person or the person ’s business, provided that:
          • The person had a reasonable opportunity and ability to implement or comply with the standards, guidance, or protocols;
          • The person refused to implement or comply with or acted with flagrant disregard of the standards, guidance, or protocols; and
          • The government-promulgated standards, guidance, or protocols that the person failed to implement or comply with did not, on the date that the individual was exposed to the disease, conflict with government-promulgated standards, guidance, or protocols that the person implemented or complied with; and
      • Reliable scientific evidence shows that the failure to warn the individual of the condition, remediate the condition, or implement or comply with the government-promulgated standards, guidance, or protocols was the cause in fact of the individual contracting the disease.
    • If there are conflicting standards, guideline, or protocols, a person that makes a good faith effort to substantially comply with at least one source fulfills the requirement above.
    • Expert report requirement.
      • Within 120 days of filing an answer to a claim, the claimant must serve on the defendant an expert report providing a factual and scientific basis for the assertion that the defendant ’s failure to act caused the individual to contract a pandemic disease; and a CV of each expert.
      • A defendant must file an objection to the sufficiency of the report within 21 days of service or filing an answer.
      • If a court finds that a report does not represent an objective, good faith effort to provide a factual and scientific basis, it may give the plaintiff one opportunity to cure a deficiency in the report within 30 days.
      • If a sufficient report is not timely served, the court, on the defendant ’s motion, must dismiss the claim with prejudice; and awarded the defendant reasonable attorney ’s fees and costs.
      • An expert report is not admissible evidence, may not be used in a deposition, trial, or other proceeding, and may not be referred to by any party.
      • Limits depositions prior to serving an expert report to two.
  • Health care liability protection
    • A physician, health care provider, or first responder is not liable for an injury or death arising from care, treatment, or failure to provide care or treatment relating to or impacted by a pandemic disease or a disaster declaration related to a pandemic disease.
    • This liability protection does not apply to reckless conduct or intentional, willful, or wanton misconduct.
    • To assert this defense, the physician, health care provider, or first responder must prove by a preponderance of the evidence that:
      • A pandemic disease was a producing cause of the care, treatment, or failure to provide care or treatment that allegedly caused the injury or death; or
      • The individual who suffered injury or death was diagnosed or reasonably suspected to be infected with a pandemic disease at the time of the care, treatment, or failure to provide care or treatment. A plaintiff can overcome this defense by proving by a preponderance of the evidence that pandemic disease was not a producing cause of the individual’s injury or death.
    • A physician, health care provider, or first responder who intends to raise the defense above must provide a claimant with specific facts supporting the defense not later than the later of:
      • The 60th day after the date the claimant serves an expert report on the physician, health care provider, or first responder; or
      • The 120th day after the date the physician, health care provider, or first responder files an original answer in the suit.
    • Care, treatment, or failure to provide care or treatment relating to or impacted by a pandemic disease or a disaster declaration related to a pandemic disease is broadly defined to include:
      • Screening, assessing, diagnosing, or treating an individual who is infected or suspected of being infected with a pandemic disease;
      • Prescribing, administering, or dispensing a drug or medicine for off-label or investigational use to treat an individual who is infected or suspected of being infected with a pandemic disease;
      • Diagnosing or treating an individual who is infected or suspected of being infected with a pandemic disease outside the normal area of the physician ’s or provider ’s specialty, if any;
      • Delaying or canceling nonurgent or elective medical, surgical, or dental procedures;
      • Delaying, canceling, or not accepting in-person appointments for office or clinical visits, diagnostic tests, scheduled treatment, physical or occupational therapy, or any other diagnosis or treatment of an illness or condition not related to a pandemic disease;
      • Using medical devices, equipment, or supplies outside of their normal use, including using or modifying such devices, equipment, or supplies for an unapproved use, to treat an individual who is infected or suspected of being infected with a pandemic disease;
      • Conducting tests on or providing treatment to an individual who is infected or suspected of being infected with a pandemic disease outside the premises of a health care facility;
      • Acts or omissions caused by a lack of personnel or staffing, facilities, medical devices, supplies, or other resources attributable to a pandemic disease that renders a physician, health care provider, or first responder unable to provide the same level or manner of care to any individual that otherwise would have been acquired in the absence of the disease; and
      • Acts or omissions arising from the use or nonuse of personal protective equipment.
    • The health care liability protections apply to claims arising from care beginning on the date that the president or governor makes a disaster declaration related to a pandemic disease and ending on the date that the declaration terminates.
  • Product liability protection
    • A person who designs, manufactures, sells, or donates certain products during a pandemic emergency is not liable for personal injury, death, or property damage caused by the product unless:
    • The person: (1) had actual knowledge of a defect in the product when the product left the person ’s control; or (2) acted with actual malice in designing, manufacturing, selling, or donating the product; and (3) the product presents an unreasonable risk of substantial harm to an individual using or exposed to the product.
    • Similar liability protection applies to claims alleging a failure to warn or provide adequate instructions and claims alleging injuries caused by a person ’s selection, distribution, or use of certain products during a pandemic emergency.
    • The product liability protection applies to:
      • Personal protective equipment;
      • Medical devices, equipment, and supplies used during a pandemic emergency or to treat individuals infected or suspected to be infected with a pandemic disease, including devices, equipment, and supplies used or modified for an unapproved use to treat or prevent the spread of the disease or used outside of their normal use to treat or prevent the spread of the disease;
      • Drugs, medicines, or vaccines used to treat or prevent the spread of a pandemic disease, including drugs, medicines, or vaccines prescribed, dispensed, or administered for an unapproved use in an attempt to treat or prevent the spread of the disease or used outside of their normal use in an attempt to treat or prevent the spread of the disease;
      • Tests to diagnose or determine immunity to a pandemic disease;
      • Commercial cleaning, sanitizing, or disinfecting supplies used to prevent the spread of a pandemic disease; or
      • Any component of these products.
  • Liability of educational institutions
    • An educational institution is not liable for damages or equitable monetary relief arising from a cancellation or modification of a course, program, or activity of the institution if the cancellation or modification arose during a pandemic emergency and was caused, in whole or in part, by the emergency.
    • This liability protection applies to public or private preschools, child-care facilities, primary or secondary schools, colleges and universities, and other institutions of higher education.
  • Applicability
    • The liability protections are retroactive to an action commenced on or after March 13, 2020 for which a judgment has not become final.

Utah

UT S.B. 3002 – Medical Liability

Enacted: 4/22/2020

  • This legislation provides several liability protections to health care providers who treat patients during a major public health emergency. The bill is not COVID-19 specific. The protections apply regardless of whether a health care provider is compensated or not.
  • General standard of care during emergency. A health care provider is immune from civil liability when:
    • health care is provided in good faith to treat a patient for the illness or condition that resulted in the declared major public health emergency; or
    • the act or omission was the direct result of providing health care to a patient for the illness or condition that resulted in the declared major public health emergency; and
    • the acts or omissions of the health care provider were not grossly negligent or intentional or malicious misconduct.
  • Acting outside scope of practice. During a major public health emergency is not a breach of the applicable duty of care for a health care provider to provide care that is not within the provider’s education, training, or experience when:
    • acting within the licensed scope of practice;
    • the care is provided in good faith to treat a patient for the illness or condition that resulted in the emergency; or
    • there is an urgent shortage of health care providers as a direct result of the emergency; and
    • the acts are not grossly negligent, or intentional or malicious misconduct.
  • Unapproved use of drug or device. A health care provider is not subject to civil or criminal liability, sanctions against the provider’s license if the provider uses a prescription drug or device to treat a patient diagnosed with the illness or condition that resulted in the emergency that has been approved for sale but not approved (indicated) for the illness or condition at issue. 
    • To qualify, the treatment must be within the scope of the provider’s license, the treatment must be provided in accordance with the most current written recommendations issued by a federal government agency, and the provider must describe the positive and negative outcomes of the treatment with the patient or patient’s representative and document consent.
    • If there are two or more written recommendations of an agency, a healthcare provider qualifies by satisfying the most current written recommendations of any one agency.
    • Does not apply to gross negligence, or intentional or malicious misconduct.
  • Use of investigational drug or device. A health care provider not subject to civil or criminal liability, or sanctions against the provider’s license for any harm resulting from the provider’s treatment of a patient with an investigational drug or device during a major public health emergency for a condition that resulted from that emergency.
    • A physician is not required to make such a treatment available or agree to administer an investigational drug or treat a patient with an investigational device.
    • Does not create a private right of action against a heath care provider for the above or against a manufacturer what refuses to provide a patient with an investigational drug or device.
  • Takes effect immediately upon enactment.

UT S.B. 3007 – Premise Liability

Enacted: 5/4/2020

  • A person is immune from civil liability for damages or an injury result 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.
  • Does not apply to willful misconduct, reckless infliction of harm, or intentional infliction of harm.
  • Does not modify application of Utah’s Workers’ Compensation Act, Occupational Disease Act, Occupational Safety and Health Act, or Governmental Immunity Act.
  • Effective immediately.

Virginia

S.B. 5082

Enacted: October 7, 2020

  • Applies to a licensed hospice, home care organization, private provider of behavioral health and developmental services, assisted living facility, or adult day care center.
  • A provider is not liable for injury or wrongful death arising from the delivery or withholding of care to a patient, resident, or person receiving services who is diagnosed, or believed to be infected, with COVID-19 when the emergency and subsequent conditions caused by the emergency result in a lack of resources, attributable to the disaster, that render the provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and that resulted in the injury or wrongful death at issue.
  • Does not apply to gross negligence or willful misconduct.
  • Applies to causes of arising between March 12, 2020 and the conclusion of the COVID-19 state of emergency.

Washington

S.S.B. 5271

Enacted: May 10, 2021

  • Health care provider liability protection.
    • During the declared COVID-19 state of emergency, the standard of care for determining the liability of health care providers and facilities will, if relevant, take into account whether the act or omission:
      • Was in good faith based upon federal, state, or local government  guidance, direction, or recommendations in response to the pandemic that are applicable to the health care provider; or
      • Was due to a lack of resources including, but not limited to, available facility capacity, staff, and supplies, directly attributable to the pandemic; and
      • Such failure was a proximate cause of the injury complained.
    • If a health care provider presents the type of evidence above, the injured patient may present rebuttal evidence, so long as such evidence is otherwise admissible.
  • This liability protection is retroactive to February 29, 2020 and ends upon termination of the state of emergency.

West Virginia

COVID-19 Jobs Protection Act, S.B. 277

Enacted: March 19, 2021

  • There is no claim against any person, business, health care facility or provider, or other person for loss, damage, physical injury, or death arising from COVID-unless a person engaged in intentional conduct with actual malice.
    • This provision includes claims alleging injuries from exposure to COVID-19; medical care provided to treat COVID-19 or delaying or modifying medical procedures; collecting, reporting, tracking, tracing, disclosing, or investigating COVID-19 exposure or other COVID-19-related information, among other activities.
  • A person that designs, makes, sells, or donates a (1) qualified product or (2) household disinfecting or cleaning supplies or personal protective equipment in response to COVID-19 that does not make such products in the ordinary course of the person’s business is not liable for any personal injury, death, or property damage caused by the product’s manufacturing or design, or a failure to provide sufficient warnings.
    • A “qualified product” includes:
      • Personal protective equipment used to protect the wearer from COVID-19 or prevent the spread of COVID-19;
      • Medical devices, equipment, and supplies used to treat COVID-19 including products that are used or modified for an unapproved use to treat COVID-19 or prevent the spread of COVID-19;
      • Medical devices, equipment, or supplies utilized outside of the product’s normal use to treat COVID-19 or to prevent the spread of COVID-19;
      • Medications used to treat COVID-19 including medications prescribed or dispensed for off-label use to attempt to combat COVID-19;
      • Tests to diagnose or determine immunity to COVID-19; and
      • Components of qualified products.
    • This product liability protection does not apply if a person had actual knowledge of a defect when put to the use for which the product was made; and acted with conscious, reckless, and outrageous indifference to a substantial and unnecessary risk that the product would cause serious injury to others; or acted with actual malice.
    • Establishes a one-year statute of limitations for COVID-19 product liability claims.
  • Provides that, when awarded, workers’ compensation benefits are the sole and exclusive remedy for an injury, disease, or death caused by COVID-19 in covered employment.
  • The law does not apply to contract-related claims.
  • Applies retroactively to any cause of action accruing on or after January 1, 2020.

Wisconsin

 S.B. 1

Enacted: 02/25/2021

  • An entity is immune from civil liability for death, injury, or damage caused by an act or omission resulting in exposure to COVID-19 except for reckless or wanton conduct or intentional misconduct.
    • “Entity” is broadly defined to include businesses, government entities, schools, and nonprofit organizations and any owner, employee, agent, or independent contractor, paid or unpaid, of that entity.
    • Apply retroactively to March 1, 2020, except that it does not apply to an action filed before enactment.

A.B. 1038 (2019 Wis. Act 185)

Enacted: 4/15/2020

  • Health care professionals, health care providers, and their employees, agents, and contractors are immune from civil liability for death or injury to any individual if:
    • The act or omission occurred during the COVID-19 state of emergency or the 60 days following the termination of the state of emergency;
    • The acts or omissions relate to health care services provided or not provided in good faith, or are substantially consistent with:
      • Any direction, guidance, recommendation, or other statement made by a federal, state, or local official to address or in response to the COVID-19 emergency; or
      • Any guidance published by the department of health services, the federal department of health and human services, or any divisions or agencies of the federal department of health and human services relied upon in good faith. 
    • Does not apply to reckless or wanton conduct or intentional misconduct. 
  • Any person that engaged in the manufacturing, distribution, or sale of “emergency medical supplies” is not liable for the death of or injury to an individual caused by the products donated or sold. This protection applies only if the products are donated or sold at cost. Charitable organizations that distribute emergency medical supplies free of charge are also covered by the liability protection.
    • Amends an existing law that immunizes persons that sell at cost or donate food or emergency household products to a charitable organization or governmental unit in response to a state of emergency unless the harm was caused by willful or wanton acts or omissions, Wis. Code § 895.51, to apply to “emergency medical supplies” related to COVID-19.
    • “Emergency medical supplies” is defined as “any medical equipment or supplies necessary to limit the spread of, or provide treatment for, a disease associated with the [COVID 19 public health emergency], including life support devices, personal protective equipment, cleaning supplies, and any other items deemed necessary by the secretary of health services.
    • Does not apply to willful or wanton acts or omission, per existing law.
    • Applies only during the period of the public health emergency.
  • Presumes that when a first responder contracts COVID-19 during the public health emergency and 30 days after termination of the emergency that the injury is due to the person’s employment and compensable through a workers’ compensation claim. “First responder” includes an employee or volunteer for any employer that provides firefighting, law enforcement, or medical treatment of COVID-19, and who has regular, direct contact with, or is regularly in close proximity to, patients or other members of the public requiring emergency services.

Wyoming

S.F. 1002

Enacted: 5/20/2020

  • A business entity that follows the instructions of a state, city, town or county health officer in responding to a public health emergency is immune from liability arising from complying with those instructions or acting in good faith.
    • Amends existing Wyoming law provides immunity during a public health emergency to any health care provider or other person, who in good faith follows the instructions of a state health officer from any liability arising from complying with those instructions.
    • Does not apply to gross negligence or willful or wanton misconduct.
  • From January 1 to December 30, 2020, it is presumed that the risk of contracting illness or communicable disease was increased by the nature of the employment, allowing employees who contract COVID-19 to file a workers’ compensation claim.

Updated August 31, 2021

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