By Rob Gilmore & Alexis Preskar
Ohio’s legislature passed a law limiting the liability of essential workers who transmit COVID-19. H.B. 606 now goes to Gov. Mike DeWine for review and signature. The bill grants civil immunity – from both professional discipline and civil suits – to health care providers while Ohio is in a declared state of emergency. However, the measure is temporary and those individuals or entities could still be held liable if they act in bad faith or in a wanton or reckless manner. Here is the breakdown:
Who is protected?
Health care providers, which is broadly defined and includes everyone from doctors and nurses to massage therapists and athletic trainers, as well as home health care and hospice workers.
What kind of actions are protected?
Providers are protected from liability if they transmit COVID-19 while administering both routine and emergency medical or health care services.
When does the limitation apply?
During the time of or in response to a disaster or emergency. A “disaster” is any occurrence of widespread personal injury or loss of life that results from any natural or technological phenomenon or act of a human, or an epidemic and is declared to be a disaster by the federal government, the state government or a political subdivision of Ohio. An “emergency” is any period during which the Congress, the Governor, a board of county commissioners, a board of township trustees or a mayor or city manager in Ohio has declared or proclaimed that an emergency exists. As Ohio and the country are currently in a state of emergency, this protection applies now.
Any exceptions?
Providers are also still on the hook for reckless disregard, intentional misconduct or grossly negligent actions. It also does not apply if the provider takes actions that are outside their skills, education or training, unless the provider is acting in good faith and due to a lack of resources, e.g. in emergency situations.
Ohio joins several other states that have passed some form of COVID-19 liability immunity. Some states are similarly limited to health care providers, but others have passed laws broadly protecting all kinds of businesses. For example, the governor of Arkansas signed an executive order which grants immunity to “all businesses and their employees,” with a similar carve-out for intentional or reckless conduct. However, there is a presumption that “actions are not willful or reckless if the business owner substantially complies with public health directives.”
Business groups are lobbying the federal legislature to pass a similar law so there is nationwide clarity, but there is significant push-back on any proposals. But as states are primed to act more quickly, especially in a sea of rising cases, a federal bill may become redundant or outdated.
We will continue to monitor state and federal legislation relating to business civil immunity in the COVID‑19 era. As businesses re-open, however, it is vital that they do so in a planned and controlled manner with an eye toward employee and customer safety. For more information on how businesses can safely re-open and comply with relevant local, state and federal guidelines, please contact Rob Gilmore (rsg@kjk.com / 216-736-7240) or Alexis Preskar (avp@kjk.com / 614-427-5748) or any of KJK’s Labor & Employment professionals.