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.