CONSTRAINTS ON COVID-19 LIABILITY ENACTED IN 2021
Two thirds of states have responded to the concern that businesses, schools, daycare centers, entertainment and event venues, and others would be sued for a person’s exposure to COVID-19. Eighteen states enacted these laws in 2021, including Alabama, Alaska, Arizona, Arkansas, Florida, Indiana, Kentucky, Missouri, Montana, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin. They joined Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah, and Wyoming, which adopted COVID-19 exposure legislation during the first year of the pandemic.
These laws vary significantly from state to state, but generally provide a safe harbor from liability to those who follow public health guidance, raise the standard of liability beyond bare negligence, or combine these approaches. For example, some states require a showing that a person recklessly disregarded a known risk that a person would be exposed to COVID-19 or was grossly negligent. The Mississippi, North Dakota, South Dakota, and West Virginia laws require a showing that a person’s exposure to COVID-19 resulted from an intentional or malicious act, or willful misconduct. Some of these laws include heightened evidentiary requirements, such as in Florida and Texas. A 2021 Missouri law, similar to legislation enacted in Georgia in 2020, creates a presumption that a business is not liable if it posts a sign warning entrants of the inherent risk of COVID-19 exposure.
Nearly every state that enacted COVID-19-related tort legislation raised the standard for medical liability cases above ordinary negligence. State legislation varies in how it defines eligibility for liability protection (healthcare professionals, facilities, or both), the scope of conduct covered (directly treating COVID-19 patients or other care impacted by a lack of resources due to the pandemic), exceptions for coverage (such as whether nursing homes are included), and the conduct that remains subject to liability (such as gross negligence).
In addition, almost half of the states have limited the risk of liability of those who make, sell, or donate personal protective equipment and other products in response to the pandemic. Many of these companies shifted to make needed supplies that they do not ordinarily produce like masks, face shields, ventilators, and hand sanitizer. Alabama, Indiana, Missouri, Montana, Nebraska, North Dakota, South Carolina, South Dakota, Texas, and West Virginia enacted product liability protections in 2021, joining Alaska, Georgia, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, and Wisconsin. These laws vary significantly from state to state and may extend to products or parties beyond the already-robust liability protections for products covered by the federal Public Readiness and Emergency Preparedness (PREP) Act.