Ohio Passes Law Granting Immunity from COVID-19 Related Lawsuits

Small businesses and non-profits have had a lot to worry about this year. Not surprisingly, many small business owners and non-profit directors have been asking about ways to protect themselves from lawsuits related to COVID-19. Will a customer or employee try to sue us if they get COVID? Will a waiver protect us from this type of litigation?
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In response, the Ohio General Assembly passed H.B. 606 “to make temporary changes related to qualified civil immunity for health care and emergency services provided during a government-declared disaster or emergency fund and for exposure to or transmission or contraction of certain coronaviruses.” So what does this mean for small businesses or non-profits who are wondering about their potential liability if someone claims they were exposed to COVID-19 at your place of business? And what other liabilities are out there waiting to trap the unwary?

​Negligence Cases: A Bit of Background ​

Prior to H.B. 606, a lawsuit claiming your business or organization exposed someone to coronavirus would have been based on the tort of negligence. Negligence requires the plaintiff (the person suing you) to prove four key elements:

• Duty: you had a duty to the plaintiff,
• Breach: you breached (or violated) that duty in some way (often through actions that weren’t quite up to the appropriate standard),
• Causation: your breach was the cause of the harm suffered by the plaintiff, and
• Damages: your breach resulted in damages to the plaintiff.

Given what we’ve learned about the transmission of the coronavirus in the last few months and the general lack of contact tracing, I think it would have been extremely difficult to prove the causation element in the vast majority of cases. But even frivolous litigation can be a nightmare for small businesses and non-profits because litigation is a drain on your time, your emotions, and your budget. Even if you ultimately win the case, you would have spent tens of thousands of dollars in legal fees. Because of this, many clients asked us about waivers and releases to protect themselves from these types of lawsuits.

What Does H.B. 606 Do?

​The General Assembly, citing “thousands” of lawsuits related to COVID-19 being filed across the country, passed H.B. 606 granting state-law immunity from civil lawsuits for “injury, death, or loss to person or property” related to “exposure to, or the transmission or contraction” of the novel coronavirus. This protects all Ohio entities, including both for-profit and non-profit organizations of all sizes, from frivolous lawsuits alleging exposure to or the transmission of COVID-19. 

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​The law does contain an exception for “reckless conduct.” So if you or your employees, “with heedless indifference to the consequences, disregards a substantial and unjustifiable risk that [your] conduct is likely to cause an exposure to, or the transmission or contraction, of COVID-19,” then you could still potentially face a civil lawsuit. But H.B. 606 goes a step further and makes even this type of claim unlikely by including a provision that states that public health orders do not create new legal duties for purposes of liability. In fact, under H.B. 606, public health orders are not even admissible as evidence that a person had or breached a duty to the plaintiff. So now, not only is the causation element difficult to prove, but a potential plaintiff will also have difficulty proving the first two elements: duty and breach.
Finally, even if the immunity granted by H.B. 606 does not apply for some reason (i.e., you or your employees were being reckless or intentionally exposed a person to COVID-19), the law also prohibits class actions. Class actions typically give a group of plaintiffs, whose individual cases might not be worth the cost of pursuing in court, an opportunity to band together to make their cases more cost effective. H.B. 606 cut off this possibility to further discourage litigation.
H.B. 606 will be retroactive to March 9, 2020, the date Ohio declared a state of emergency, and will expire on September 30, 2021. 

But Wait: Other Potential Legal Risks

It’s important to realize that while H.B. 606 will protect small businesses and non-profits from lawsuits based in state law, it is not a get out of jail free card for the other potential liabilities you might face, particularly under federal law and various employment laws.

• The Occupational Health and Safety Act (OSHA) still requires employers to provide a workplace free from recognized, serious hazards, record work-related injuries and illnesses, and comply with OSHA standards and regulations. OSHA has not adopted standards addressing an employer’s obligations to safeguard employees during a pandemic. Will an employee’s COVID-19 infection be considered work-related? How might this implicate workers’ compensation insurance?
• The Families First Coronavirus Response Act (FFCRA) expanded paid sick leave requirements specifically to small businesses whose employees needed time off for qualifying reasons. The FFCRA also provides additional unpaid, but job-protected, leave to employees who needed additional time off related to childcare. The FFCRA runs through December 31, 2020.
• The Americans with Disabilities Act (ADA) generally requires employers to provide reasonable accommodations to a person with a disability so that person can perform the essential functions of the job. This will have a major impact on how you respond to employees who request permission to continue working from home because they have an underlying medical condition that increases their risks if they are exposed to the coronavirus.
• While your employees are working from home, you should also consider how you are monitoring their hours worked and potential overtime claims. As an employer, you are required to pay for all work that you “suffer or permit” your employees to perform, even if they worked overtime without your explicit permission.
• Finally, if your business or non-profit has access to confidential or sensitive information, how will you ensure that your organization protects that information, especially when your employees are working remotely? Breaching confidentiality clauses in your contracts or exposing your customers’ sensitive personal information to hackers can lead to significant liability for your organization.

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If you have any questions about the potential liabilities your business or non-profit may face during these challenging times, don’t hesitate to schedule a consultation today:

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