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?
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:
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.
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.
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.