State of Affairs

Over the last several months, the COVID-19 pandemic has prompted public policy responses on a number of fronts. In addition to the typical public health measures taken, such as “stay at home” orders and public mask mandates, we’ve seen policies enacted at both the state and federal levels aimed at curbing the devastating impact that shutdowns have had upon the economy nationwide. One such measure that has been gaining steam across the country is liability protections for businesses reopening in the midst of the pandemic. 

As more states expand the reopening process, and people start to resume some semblance of a “normal” life, states have taken steps to ensure that our health care providers, restaurants, hoteliers, caregivers, schools and universities aren’t inundated with a flood of lawsuits alleging liability relating to potential COVID-19 exposure.

Earlier this month, the State of Ohio enacted significant liability protections to nearly all Ohio entities. The tort protections, which expire on September 30, 2021, put Ohio on a growing list of states that have enacted similar measures.  To date, more than a dozen states have provided some level of liability protections through either the passage of legislation or the issuance of an executive order. While these measures vary by state, they often times take the form of time-limited protections for entities that are in substantial compliance with existing COVID-19 protocols and safety guidelines. Many of the liability measures include a heightened standard of proof for bringing a COVID-19 related injury claim.

Meanwhile, there’s been a push in Congress for a federal law that would provide substantial COVID-19 liability protections nationwide. As part of the so-called “HEALS Act,” Senate Majority Leader Mitch McConnell and others have pushed for the federal courts to have original jurisdiction over all COVID-19 related claims. The proposed liability protections would include heightened pleading standards for plaintiffs and blanket protection for health care providers unless gross negligence or willful misconduct has been committed. However, with Congressional COVID-relief negotiations stalled for weeks now, action on this front is not expected anytime soon. 

All of this could be a preview for West Virginia’s 2021 Regular Session, which has seen a number of neighboring states (Ohio, Kentucky, Pennsylvania, North Carolina, Tennessee) already implement some level of liability protections. The West Virginia Chamber of Commerce, National Federation of Independent Business (NFIB) and health care provider groups alike have all cited the need for such protections in West Virginia. Senate President Mitch Carmichael has previously indicated that liability protection legislation is in the drafting process, and members of the House of Delegates are making a similar push for legislation.  Accordingly, legal reform is shaping up to be one of the hot-button topics of the coming legislative session.