It is no secret that the COVID-19 pandemic has had a cataclysmic impact on small and large businesses across the state of Ohio. Some businesses have been shuttered indefinitely, while other businesses have had to adjust on the fly and upend their operations to mitigate the spread of COVID-19. Businesses that have been able to reopen have also faced the question of whether they are subject to tort liability if an employee, customer, vendor or other person contracts COVID-19 while on the premises. House Bill 606 now answers that question – at least in the short term.
On Sept. 14, 2020, Gov. Michael DeWine signed House Bill 606 into law, a move that businesses are likely to celebrate. The law has two chief functions: (1) to provide civil immunity for health care providers who provide medical services and (2) to provide civil immunity for businesses. This post focuses on the latter.
Under the law, corporations, individuals, and other entities like schools and colleges are immune from most civil lawsuits for injuries, death or loss of property caused by the exposure to, or the transmission or contraction of, COVID-19. This liability shield applies unless a plaintiff can establish that the exposure to, or the transmission or contraction of, COVID-19 was due to reckless conduct, intentional misconduct, or willful or wanton misconduct on the part of the defendant. Further, House Bill 606 prohibits class action lawsuits for injuries, death or loss of property, even if the defendant allegedly engaged in reckless conduct, intentional misconduct, or willful or wanton misconduct. Finally, the law states that government orders, recommendations and guidelines will not create a duty of care for purposes of tort liability, a new cause of action or legal right, and such orders, recommendations, and guidelines are presumptively inadmissible as evidence of a duty, cause of action or legal right. House Bill 606 is retroactive to March 9, 2020 – the date Governor DeWine declared a state of emergency due to COVID-19 – and will continue in effect through Sept. 30, 2021.
Recall that an earlier draft of this law created a presumption that certain employees who contracted COVID-19 did so in the course of and arising out of their employment. If enacted, this language would have provided employees with an easier route to establishing a compensable, COVID-19-related workers’ compensation claim. This language was not included in the law signed by Gov. DeWine. Rather, the existing workers’ compensation laws addressing occupational diseases contracted in the workplace will be used to adjudicate COVID-19 claims.
States like Georgia and Louisiana have recently passed similar laws in response to the COVID-19 pandemic. Although House Bill 606 is a big win for the business community, employers should still be vigilant and ensure they follow best practices regarding COVID-19, including social distancing, mask use, and frequent hand washing. Failure to do so will make it easier for a plaintiff to argue that the liability shield should not apply.