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House and Senate Bill Seeks to Provide Immunity for COVID-19

By: Robert L. Solt, IV

rsolt4@bugbeelawyers.com

With the re-opening of businesses following Ohio’s stay-at-home order, many employers are concerned about the potential civil liability regarding an outbreak at their place of business. The Ohio Legislature is currently working on two separate pieces of legislation, House Bill 606, and Senate Bill 308, which address this very issue.

House Bill 606 began as a narrowly tailored law which would provide immunity from lawsuits to health care providers who transmit COVID-19. Specifically, this bill provides for essential workers, as defined by the Director of Health’s March 22, 2020 stay-at-home order. Further, it encompasses health care providers, which includes any facility that provides any health care service. These providers are granted civil immunity from lawsuits for injury, death, or loss to person or property, arising from the transmission of COVID-19 by such essential workers. However, the bill does not apply if the health care provider acts manifestly outside of his/her scope of responsibilities, with malicious purpose, in bad faith, or in a wanton or reckless manner. H.B. 606 also provides significant immunity from lawsuits for the State, and other political subdivisions. Significantly, H.B. 606 also amends the occupational disease provision of the Workers’ Compensation law in R.C. 4123.68. Specifically, the bill creates a rebuttable presumption that emergency responders, corrections officers, and certain food workers diagnosed with COVID-19, contracted the disease in the course of and arising out of their employment. Employers may refute the presumption by producing affirmative evidence to the contrary.

Currently, H.B. 606 passed overwhelmingly in the House on May 27, 2020 and has been sent to the Senate.

Senate Bill 308, introduced around the same time as H.B. 606, is significantly broader than the house bill. S.B. 308 first addresses health care providers, and also expands the existing immunity from lawsuits for additional actions (not just emergency care) taken by health care providers during the declared state of emergency. Further, S.B. 308 grants immunity from lawsuits to additional health care providers (for example, dental assistants and home health agencies) and provides health care professionals immunity from disciplinary action arising from health care services related to the declared disaster. Similar to H.B. 606, S.B. 308 does not provide immunity for actions that constitute willful or wanton misconduct.

S.B. 308 also provides for civil immunity from lawsuits for service providers. A service provider is any owner, officer, director, employee or agent that provides lodging, sheltering, groceries, pharmaceutical products, fuel products, other products, retail merchandise, manufacturing, care, religious or other nonprofit services, or other acts that are part of, or outside the normal scope of a person’s business or nonprofit activity during the period of the declared disaster and not more than 180 days after the end of such period. Under S.B. 308, a service provider is not liable for damages to any person in a civil action for illness, nor for injury, death, or loss to person or property from the service provider’s services that are in response to, or intended to assist persons to recover from, a disaster or otherwise sustain themselves during the period of the declared disaster and not more than 180 days afterward. Further, a service provider is not liable for injury, death, or loss to person or property resulting from, or related to, the person’s actual or alleged exposure to an illness in the course of, or through that provider’s provision of services. However, the bill does not provide immunity if there is clear and convincing evidence that the service provider’s act or omission is intentional, willful, or wanton misconduct. In its current form, S.B. 308 does not include an amendment to the occupational disease provision of the Workers’ Compensation law.

S.B. 308 currently has had four committee meetings and nearly 60 witnesses have provided testimony.

As of June 1, 2020, both bills were in the Senate and subject to further amendments.

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