States Expand COVID-19-Related Immunity and Provide Guidance to Businesses Reopening

Along with the expansive tort liability immunity offered by the recent Declaration of the Secretary of the Department of Health and Human Services (HHS), several states continue to expand immunity from liability for businesses and manufacturers during the COVID-19 pandemic. As discussed in previous articles here, the Public Readiness and Emergency Preparedness Act (the PREP Act), as well as the Declaration by the Secretary of the HHS here, provide manufacturers and distributors of “covered countermeasures”—COVID-19 products used in the fight against the pandemic—and healthcare providers treating patients with immunity from federal and state tort liability. As an additional layer of protection, some businesses are now asking consumers to sign liability waivers when purchasing products or providing services. Liability waivers, however, are not always enforced by courts and can be voided for being “against public policy.” Now, North Carolina, Oklahoma, Utah, and Wyoming have passed recent legislation providing broader immunity than that extended by the PREP Act—or available through liability waivers—for businesses outside of the healthcare sector, and have provided clear guidance about the duty of care businesses owe employees and patrons when reopening.

• North Carolina Provides Limited Tort Immunity to All “Essential" Businesses. In North Carolina, Senate Bill 704 was passed and signed into law on May 4, 2020, providing immunity to “essential” businesses with respect to claims from any customer or employee for any injuries or death caused in connection with the contraction of COVID-19. Under multiple executive orders, “essential” businesses in North Carolina include a wide array of businesses such as hardware stores, pharmacies, banks, and restaurants (as well as take-out and dine-in services). That said, immunity will not protect against claims for gross negligence, recklessness, or intentional inflection of harm, or claims under North Carolina’s Worker’s Compensation Act. Notably, immunity is retroactive to March 27, 2020, and will continue until COVID-19-related emergency orders expire.
• Oklahoma Provides Tort Immunity for Exposure, or Potential Exposure, by “Any Person Conducting Business” that Follows Guidance Issued By At Least Two Health Authorities. In Oklahoma, Senate Bill 1946 was passed and signed into law on May 21, 2020, providing any person conducting business immunity against a claim for injury from exposure or even potential exposure to the coronavirus “if the act or omission alleged to violate a duty of care of the person or agent was in compliance or consistent with federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time of the alleged exposure.” Businesses reopening in Oklahoma can attempt to reduce their liability by following the government guidance announced at the time of the alleged exposure found within at least two of the following sources: Centers for Disease Control and Prevention (CDC), Oklahoma Safety and Health Administration, the Oklahoma State Department of Health, the Oklahoma Department of Commerce, state or federal regulations, or a presidential or gubernatorial executive order.
• Wyoming Provides Immunity from Lawsuits to Businesses that Follow Wyoming State Health Officer’s Orders and Guidance. In Wyoming, Senate File 1002 was passed and signed into law on May 20, 2020, providing “business entities” immunity from lawsuits filed during the COVID-19 pandemic so long as they follow the orders of the Wyoming state health officer. This measure provides that the Wyoming State Health Officer’s orders and guidance govern the safety precautions businesses should take for their employees and patrons during this pandemic. For example, the Wyoming State Health Officer’s guidance for grocery and retail stores requests that businesses provide shoppers with wipes or other disinfectants on carts or touchpads, increase cleaning as much as possible, and have employees follow the CDC guidance regarding face coverings. A retail store making a “good faith effort” to follow this guidance will have immunity from tort liability, and immunity will expire on June 31, 2020.
• Utah Provides Tort Immunity for Any Injuries Resulting from COVID-19 Exposure to All Businesses Regardless of Adherence to Health Authority Guidelines. In Utah, SB 3007 was passed and signed into law on May 4, 2020, providing expansive immunity “from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by the person (business owner), or during an activity managed by the person.” The legislation applies broadly to cover individuals, companies, associations, and government entities; the only limitation is for liability stemming from willful misconduct, reckless infliction of harm, or intentional infliction of harm. This bill eliminates uncertainties for businesses trying to reopen about their duty of care to employees and patrons by providing broad immunity for conduct during the duration of the pandemic.

As states begin to ease lockdown restrictions, businesses in these states should become familiar with the guidelines for reopening in order to try to best protect themselves from liability related to claims of exposure to COVID-19, and document the procedures and policies they adopt while attempting to comply with the new regulations and guidance.

For any questions regarding whether your company is covered under the new state laws, please contact Sandra Edwards, John Drosick, or your Winston relationship attorney. 

View all of our COVID-19 perspectives here. Contact a member of our COVID-19 Legal Task Force here.