State Laws: Immunity from COVID-19 Liability
One third of the States have adopted some form of immunity from liability for COVID-19 but details vary considerably.
At least 17 states have enacted some form of immunity from liability for claims arising out of COVID-19. As reflected in the attached chart, states have designed their respective laws along five general dimensions:
1. What injuries are subject to immunity from liability?
2. Which activities are protected by immunity from liability?
3. How does a defendant trigger the presumption of immunity?
4. How can a plaintiff rebut the presumption of immunity?
5. When does the presumption expire?
Subject Injuries
Statutory immunity from liability is not necessarily limited to claims alleging the defendant caused a person to become infected with COVID-19. In some states, immunity could bar claims relating to fear of exposure to COVID, mandatory quarantine after a potential exposure, physical injuries from malfunctioning personal protective equipment, or worsening of a non-COVID-19 condition because of the defendant’s response to COVID-19.
A COVID-19 liability claim subject to immunity typically encompasses one or more of the following types of injuries:
· Contraction of COVID-19
· Exposure or potential exposure to COVID-19
· Injurious emergency response to or treatment of a COVID-19 infection
· Injurious emergency response to or treatment impacted by a COVID-19 crisis response
· Injury related to the use of COVID-19 personal protective equipment
Immunity from liability does not extend to claims arising from contractual obligations, loss of use of property, or property damage arising from COVID-19.
Protected Activities
Activities protected through immunity from liability may be narrowly defined such as the provision of medical care to those suffering from COVID-19 or the temporary retooling of machinery to make COVID-19 personal protective equipment. Other statutes define protected activities far more broadly such as to encompass nearly any interaction a business, nonprofit or local government may have with an individual.
Immunity from liability typically protects one or more of the following activities:
· Conducting an emergency response
· Providing healthcare
· Operating a healthcare facility
· Providing personal protective equipment for COVID-19
· Providing medical devices, medicines, or medical tests for COVID-19
· Conducting business at a premises
· Supervising business operations
Triggering the Presumption
Many state immunity statutes provide for the automatic trigger of a rebuttable presumption of immunity. Other states condition the availability of the presumption on a minimum level of compliance with applicable state or federal guidance.
If a specific trigger exists, the presumption of immunity from liability typically requires the defendant to establish one or more of the following with respect to its actions:
· Good faith
· Substantial compliance with COVID-19 guidelines
· Good faith compliance with COVID-19 guidelines
· Posted warning of the risk of COVID-19 infection
Overcoming the Presumption
Under nearly all state statutes, the plaintiff can attack the presumption of immunity from liability by proving the defendant’s conduct amounted to something greater than simple negligence. In most states a showing of gross negligence would be sufficient to rebut the presumption. In other states the somewhat higher standard of reckless disregard may be required.
The presumption of immunity from liability typically can be defeated if the plaintiff proves one or more of the following with respect to the defendant’s conduct:
· Gross negligence
· Recklessness
· Intentional conduct
· Wanton or willful intent to injure
· Actual malice
Expiration of the Presumption
All but one statutory immunity from liability is specifically tied to the COVID-19 crisis. Accordingly, the relevance of immunity from liability would seemingly fade away as COVID-19 infections someday dissipate. Nevertheless, many immunity statutes define an expiration of immunity from liability based on the date of accrual of a cause of action (i.e., the date of the injury or discovery of the injury). In such a case, the immunity from liability typically expires with respect to causes of action accruing after:
· The termination of the COVID-19 state of emergency
· A specified period (e.g., 1 year) following the termination of the COVID-19 state of emergency
· A specific date (often in 2021 or 2022)
