A recent survey by the Brookings Institution found that 11 percent of the Americans who don’t wear a mask in public are motivated by the belief that the pandemic is a conspiracy. Almost a third of Americans, and two-thirds of Republicans, believe that the death toll has been exaggerated.
A climate of divisiveness and finger pointing is fertile ground for lawsuits, and a number of states have acted to protect businesses, caregivers, schools and government itself from liability relating to injury and death resulting from COVID-19. Dozens of bills have been put forward in recent months, all creating a shield against civil liability in the absence of definitive proof that a specific act on the order of “gross negligence” can be connected to a specific injury.
Here are brief summaries of some of these bills, with complete details available through the links provided:
Among other provisions, Nevada SB4 establishes that business that have been “in substantial compliance” with health standards are immune from liability from claims relating to COVID injury or death, unless the plaintiff can prove that an act of gross negligence was the proximate cause of injury or death. Nursing homes, hospitals, independent emergency care facilities and similar facilities are not included within the term “business” as defined by the bill, whether operated for profit or by nonprofit organizations. The bill was signed by Gov. Steve Sisolak on Aug. 11.
HB59, a Louisiana bill enacted in July, provides public schools, charter schools and public post-secondary education institutions with immunity from civil liability related to injury or death resulting from actual or alleged COVID-19 exposures. This immunity extends to actions taken in response to the COVID public health emergency. It may not be claimed if the entity in question is found to have engaged in gross negligence or “wanton or reckless misconduct.”
Tennessee HB8013 would make governmental entities in the state immune from COVID-19-related claims unless a claimant can provide clear and convincing evidence that their injury was the result of an act or omission that constitutes gross negligence. Government employees are also protected, though not if it can be proved that an act or omission that was “willful, malicious, criminal or performed for personal financial gain” directly caused an injury.
SB5098, in Virginia, includes liability protection for designers, manufacturers and distributors of personal protective equipment (PPE) in the absence of gross negligence or “willful misconduct.” “Persons” protected from liability under the act include individuals, corporations, nonprofits, associations, joint ventures and other legal or commercial entities as well as the commonwealth, its subdivisions, local governments, its agents and persons acting on its behalf. Provisions of the bill expire two years after states of emergency are declared to be ended.
In addition to protection for businesses and those involved in providing PPE, Michigan SB1024 also provides protection for those who design, sell, distribute, manufacture or provide insurance coverage for cleaning and disinfecting supplies, as well as those who order them. “Qualified products” include medications prescribed for off-label use as COVID-19 treatments. It extends immunity to those who provide health care services, shelter patients and first responders for quarantine purposes. As in other bills, this protections may be withdrawn in cases of gross negligence.
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