State Legislation

Alaska | FCCS S.B. 241
  • 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

  • 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 (existing law).
    • 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.
  • 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.
  • Requires the Mayor to issue implementing regulations.
Georgia | COVID-19 Pandemic Business Safety Act, S.B. 359

Passed 6/26/2020

Awaits Gov. Signature

  • 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 8/27/2020

  • 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.
  • Expires July 1, 2021.
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. 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.
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.
Mississippi | S.B. 3049 Back-to-Business Liability Assurance Act and Healthcare Emergency Response Liability Protection Act

Enacted 7/8/2020

  • 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.
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. 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

Sent to Governor 7/24/2020

  • 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

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

Enacted: 5/4/2020

  • 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.

H. 118

Enacted 7/2/2020

COVID-19 Limited Immunity

  • 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. 
Ohio

Am. Sub. H.B. 606

Enacted 9/15/2020

  • 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.
Tennessee | COVID-19 Recovery Act, S.B. 8002

Sent to Governor 8/13/2020

  • 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.
Utah

UT S.B. 3002

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

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.
Wisconsin | 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 9/17/2020