Employer liability uncertain even after passage of COVID-19 civil immunity laws

Employers may be tempted to view new civil immunity laws in many states as providing protection and certainty against coronavirus-related claims. On closer review, however, the new laws' limited benefits mean you must keep caution and vigilance as a top priority.

Which states have passed protective laws

To date, the following states have passed broad civil immunity statutes purporting to protect businesses against COVID-19-related lawsuits: Georgia, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, Tennessee, Utah, and Wyoming. Other states, such as Alaska, Kansas, Kentucky, Massachusetts, New Jersey, and New York, have enacted legislation providing liability protections to healthcare workers and facilities responding to the pandemic.

Statutes providing COVID-19 immunity vary in the breadth of the covered industries, the extent of retroactivity, and the range of acts that are immune from litigation. All provisions preserve liability, however, for certain types of particularly egregious or intentional conduct (e.g., gross negligence, recklessness, or willfulness). A recently signed civil immunity law in Ohio provided broad immunity (retroactive to March 9) to individuals, businesses, schools, and healthcare providers for injuries or deaths related to coronavirus exposure unless it can be shown the individual, business, or institution acted with "heedless indifference to the consequences" of the actions.

3 lingering concerns for employers

So, even in the presence of the civil immunity laws, you should be cognizant of the lingering risks and uncertainties.