The COVID pandemic has permeated every aspect of business and personal life. There have been shut downs, restrictions, and procedures that businesses are supposed to follow which have frequently changed. As a response on September 14, 2020 Governor DeWine signed into law House Bill 606. This Bill, authored by Geauga County Rep. Diane Grendell and supported by a wide majority of the Ohio House and Senate, grants immunity to Healthcare workers and Healthcare businesses for essentially all claims (including, but not limited to those claims related to COVID) for their work from any such claims from March 9, 2020 through September 30, 2021 unless such claims are for “Gross Negligence” or as a result of “Reckless Disregard” of the consequences as a part of such work.
Also “Persons” — which broadly includes individuals, business entities, churches, schools, non-profits, and other like entities — are also granted immunity from any COVID related liability unless it can be “established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the Person against whom the action is brought.”
“Gross Negligence” is defined in the Act as “a lack of care so great that it appears to be a conscious indifference to the rights of others.” “Reckless Disregard” is defined as follows: “as it applies to a given health care provider rendering healthcare services, emergency medical services, first-aid treatment, or other emergency professional care, conduct by which, with heedless indifference to the consequences, the health care provider disregards a substantial and unjustifiable risk that the health care provider’s conduct is likely to cause, at the time those services or that treatment or care were rendered, an unreasonable risk of injury, death, or loss to person or property” but has a different definition for non-healthcare workers: “Reckless Conduct” means conduct by which, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations. A person is reckless with respect to circumstances in relation to causing an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.”
The Act also bars class actions related to COVID and specifically prohibits the establishment of any duty of care, cause of action, or legal right that may be alleged to have arisen from any government rule, order, or recommendation.
Without doubt, this Act will be sure to breed litigation – if nothing else over whether or not someone has engaged in Gross Negligence, Reckless Conduct, or acted with Reckless Disregard. I also find the breadth of the application of the Act to be interesting. It applies not only COVID 19 (i.e. SARS-CoV-2) and however it may mutate in the future, but also to other variants like MERS and SARS. For healthcare workers and facilities it applies to the decisions and acts they undertake related to COVID, but then appears to also extend to all other decisions and acts. I am sure that many attorneys will not be pleased with this Act. Personal injury and medical malpractice attorneys will no doubt find this Act restrictive to their practice as I would imagine that this, at a minimum, adds additional hurdles to what they have to prove to obtain relief and the seemingly broad immunity for healthcare workers and businesses may act as a complete bar to medical and nursing home negligence cases. On the flip side, business and corporate attorneys will no doubt be pleased that they can inform their clients that they do not need to worry about liability from COVID absent Gross Negligence or Reckless Conduct.
Naturally, this Act begs the question as to what will constitute Gross Negligence or Reckless Conduct; particularly in light of the frequently changing State orders and requirements. Will failure to wear a mask by an otherwise healthy person rise to that level? I doubt it. Will intentionally going shopping, eating, or to work while sick, but without a positive COVID test, reach those levels? Perhaps. If a person knows they have COVID and goes to work or shopping or whatever will that conduct raise to Gross Negligence or Reckless Conduct? Probably – if it can be proven. How does a business avoid having their employees conduct rise to the level of Gross Negligence or Reckless Conduct? What will be the threshold to liability for its employee’s or agent’s Gross Negligence or Reckless Conduct? What about from their customer’s or client’s actions? What will the liability threshold look like in a residential setting? Do landlords have any risk of liability if their tenants contract COVID? What about for their common areas like gyms and social areas?
In the end, this Act raises as many questions as it gives answers despite appearing on the surface to be a grant of blanket immunity to businesses and individuals from COVID related liability. The picture appears to be clearer for healthcare workers and businesses as their immunity has less loopholes and the threshold for liability seemingly higher. Regardless, this law will inevitably be good for attorneys as cases are brought in the months and years to come to answer these questions and many others.
2 as defined in O.R.C. 1.59
3 Am. Sub. H. B. No. 606 Section 1(A)(18)
4 Am. Sub. H. B. No. 606 Section 1(A)(42)
5 Am. Sub. H. B. No. 606 Section 2(D)(3)
6 Am. Sub. H. B. No. 606 Section 2(B) and (C)