October 27, 2020

Volume X, Number 301

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October 27, 2020

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October 26, 2020

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Ohio Passes Law Providing COVID-19 Liability Shield for Individuals, Businesses, and Health Care Providers

On Sept. 14, 2020, Ohio Governor Mike DeWine signed into law a bill, which provides significant protections against tort claims arising from COVID-19 to all entities, including individuals, businesses, health care providers, property owners, government entities, churches, and schools.

Amended Sub. House Bill 606 creates a temporary liability shield against lawsuits and other claims alleging an injury, death, or loss to property or person caused by exposure to, the transmission of, or contraction of COVID-19 or any mutation thereof. The law creates qualified immunity from civil actions, unless the plaintiff can establish his/her damages resulted from the reckless, intentional, willful or wanton misconduct of the person or entity against whom the action is brought.

Notably, even if the immunity shield does not apply, the law prohibits class actions. The law also specifically provides that public health orders, recommendations, and guidelines from federal, state, and local agencies do not create and should not be construed as creating a duty of care for the purposes of tort liability.

Subject to designated exceptions, the law also provides a shield to health care providers from tort actions arising from the “provision, withholding, or withdrawal” of health care services resulting from the pandemic, unless the plaintiff can show a recklessness, intentional misconduct, or willful or wanton misconduct.

The law applies retroactively to claims arising from March 9, 2020, through Sept. 30, 2021. The text of the law explains the legislative intent was designed to protect individuals and businesses from liability from reopening while trying to comply with the confusing and ever-changing guidance from public health agencies. The law explains the recommendations regarding how to best avoid infection have changed frequently and are not based on well-tested scientific theories. The law states that historically businesses have not been required to protect members from viruses and infections, and it has been the responsibility of the individual to protect themselves from exposure to public places.

Similar liability protections have been passed in other states, including Georgia, Louisiana, North Carolina, Oklahoma, Utah, and Wyoming.

Implications for Businesses and Employers 

Although the law provides significant protections, employers and businesses should continue efforts to ease the spread of the virus and follow local, state, and federal guidance from public health agencies. While the law creates a presumption public health orders cannot be used as evidence to establish the existence of a duty of care in tort actions, it is presumed that following the guidance will help show the business has not engaged in reckless, intentional, willful, or wanton misconduct.

Moreover, the state bill does not absolve employers of their duties under federal law, including the Occupational Safety and Health Act (OSHA), which may rely on guidance from local, state, and federal agencies to demonstrate a breach of the employer’s general duty to provide a safe working environment.

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume X, Number 262
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About this Author

Hayey Geiler, Dinsmore Law Firm, Cincinnati, Labor and Employment Attorney
Associate

Hayley is a member of the Labor and Employment Department where she works with clients of all sizes across multiple industries. Her practice focuses on the Fair Labor Standards Act, Family Medical Leave Act, the Americans with Disabilities Act, the Age Discrimination Act, Title VII of the Civil Rights Acts, the Ohio Civil Rights Act and non-compete agreements.

Prior to joining Dinsmore, she served as a judicial extern for Magistrate Judge Roderick C. Young in the U.S. District Court for the Eastern District of Virginia where she gained valuable...

513-832-5366
Faith Whittaker, Dinsmore Law Firm, Cincinnati, Labor and Employment Law Attorney
Partner

A partner in the Employment, Labor and Benefits Department, Faith has experience guiding clients through issues that arise in the workplace. She handles employment-related litigation for her clients, who range from local businesses to Fortune 500 companies.

Understanding each client has different tolerances and objectives in dealing with employment matters, Faith is passionate about learning her client’s industry and gaining insight into their operations. While always prepared to vigorously proceed through litigation, she teams with her clients to conduct a thorough evaluation of the case, examining the risks and options before crafting a unique strategy that meets their needs. She works with in-house counsel and legal departments, as well human resources officials and company executives, in analyzing each matter and charting the best course toward a resolution. Faith handles litigation relating to all facets of employment law, including, but not limited to, discrimination claims, retaliation claims, wrongful discharge claims, class and collective actions, claims relating to background checks, wage and hour claims, noncompetition issues, and common law tort claims. She also handles wage/hour and exemption issues for clients and has extensive experience in negotiating settlements.

513-977-8491
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