Ohio Law Shields Employers from COVID-19–Related Liability

By Corey N. Thrush and Donald Campbell Bulea © Ogletree Deakins October 6, 2020
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On Sept. 14, 2020, Gov. Mike DeWine signed HB 606 into law, providing employers with legal protections when it comes to their efforts to stem the spread of COVID-19 and making Ohio one of a growing number of states granting similar civil immunity. According to DeWine, the new law accomplishes the dual goals of keeping people safe and rebuilding the state's economy.

Under the new law, Ohio businesses will enjoy state-law immunity from civil actions brought by customers, employees, or others "for damages for injury, death, or loss" related to "the exposure to, or the transmission or contraction" of the novel coronavirus "unless it is established that [the exposure, transmission, or contraction] was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person against whom the action is brought." 

The law extends protections to all Ohio entities, including schools, nonprofit and for-profit entities of any size, governmental entities, religious entities, colleges and universities.

The law further provides that public health orders issued by the executive branch (i.e., the governor and the Ohio Department of Health), as well as public health orders "from counties and local municipalities, from boards of health and other agencies, and from any federal government agency, do not create any new legal duties for purposes of tort liability." The law is retroactive to the date of the declared state of emergency in Ohio, March 9, 2020, and will expire on Sept. 30, 2021.

The law also protects health care providers from both professional disciplinary action and tort liability stemming from the "provision, withholding or withdrawal" of health care services resulting from the COVID-19 pandemic. In addition, the law provides that a health care provider is not subject to professional disciplinary action, nor liable in tort, for damages arising from the provider's inability "to treat, diagnose or test" someone for "any illness, disease or condition, including the inability to perform any elective procedure" due to any public health order issued in relation to the pandemic. 

However, the law does not provide blanket protection; plaintiffs who can prove a health care provider acted with "reckless disregard for the consequences" of their actions or engaged in "intentional misconduct or willful or wanton misconduct" can still recover damages in a civil action. Moreover, health care providers remain subject to professional disciplinary action when their actions or omissions constitute gross negligence.

The new law makes it clear that government orders may not be construed as creating new causes of action for plaintiffs to invoke in place of ordinary negligence causes of action, and it provides that a government order is inadmissible as evidence that a new cause of action, legal duty or legal right has been established.

In addition to the above protections, the law provides for a complete bar of class actions based in whole or in part on allegations that a health care provider, business, government entity or person caused "exposure to, or the transmission or contraction of" COVID-19.

Corey N. Thrush and Donald Campbell Bulea are attorneys with Ogletree Deakins in Cleveland. © 2020 Ogletree Deakins. All rights reserved. Reposted with permission. 

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