By Kenton Steele, Esq. and Amanda Wager, Esq.

Coronavirus (COVID-19) created many uncertainties that left businesses wondering what potential legal exposure they could face from patrons potentially contracting COVID-19 while at their establishment. Healthcare providers have also faced uncertainty with respect to the potential for medical claims arising from treating COVID-19. To address these concerns, the West Virginia legislature recently passed SB 277, also known as the COVID-19 Jobs Protection Act. The purpose of this law is to assure businesses that reopening will not expose them to liability for a person’s exposure to COVID-19. Governor Justice recently signed the COVID-19 Jobs Protection Act into law.

The COVID-19 Jobs Protection Act eliminates liability to all persons, health care providers and facilities, institutions of higher education, businesses, and manufacturers for any loss, damages, personal injuries, or death arising from COVID-19.

Immunity to cases “arising from COVID-19” applies to liability for loss, damage, physical injury, or death, which may have occurred as a result of:

  • Implementing policies and procedures designed to prevent or minimize the spread of COVID-19;
  • Testing;
  • Monitoring, collecting, reporting, tracking, tracing, disclosing, or investigating COVID-19 exposure or other COVID-19 related information;
  • Using, designing, manufacturing, providing, donating, or servicing precautionary, diagnostic, collection, or other health equipment or supplies, such as personal protective equipment;
  • Closing or partially closing to prevent or minimize the spread of COVID-19;
  • Delaying or modifying the schedule or performance of any medical procedure;
  • Providing services or products in response to government appeal or repurposing operations to address an urgent need for personal protective equipment, sanitation products, or other products necessary to protect the public;
  • Providing services or products as an essential business, health care facility, health care provider, first responder, or institution of higher education; or
  • Actions taken in response to federal, state, or local orders, recommendations, or guidelines lawfully set forth in response to COVID-19.

However, if a person or business acts with actual malice or has knowledge of a defect in a product, which would otherwise be protected under The Act, immunity does not apply. Those claims must be brought within one year of the date of personal injury, death, or property damage. Additionally, an employee injured in the workplace may still file for workers’ compensation, but his or her workers’ compensation benefit is the only remedy available. The Act also provides immunity to health care facilities against potential liability from its employees contracting COVID-19 while working through the pandemic.

The immunity provided by The Act also extends to healthcare services that may have been affected by the pandemic. The statute bars all claims related to “impacted care,” which is defined in the statute as care offered, delayed, or otherwise adversely affected at a health care facility or to a health care provider during the COVID-19 emergency that impacted the facility or provider’s response to the COVID-19 emergency. Notably, the Legislature found that because of the rapidly evolving nature of COVID-19, and the need for experimental and new interventions, it is very difficult, if not impossible, to establish a standard of care in the medical community.

Note, however, that this law does not limit liability for medical malpractice claims that are not related to COVID-19 or the pandemic. To provide some balance, The Act includes a special process for determining whether “the impacted care” at issue in a medical malpractice claim arose from COVID-19. If the answer is yes, courts must dismiss the claims.

Importantly, this widespread immunity will apply retroactively to any cause of action accruing on or after January 1, 2020, before the pandemic began in the United States. Additionally, there is no sunset provision included in the Bill, so the liability protection is indefinite. This means that health care providers, facilities, institutions, and businesses will benefit from this immunity until and unless it is revoked.

This immunity should provide some ease to health care providers, medical facilities, and business owners as they begin to make strides towards safely re-opening. Should you have additional questions regarding this new legislation and its impact on West Virginia citizens, institutions, and businesses, please contact an attorney in Reminger’s Retail/Hospitality/Entertainment Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.  THIS IS AN ADVERTISEMENT

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