State Covid-19 Liability Shields

Amy Hebbeler, Fraternal Law Partners, Amy.hebbeler@manleyburke.com

A recent trend toward the end of 2020 and beginning of 2021 has been for states to create state COVID-19 liability shields. Generally, these statutes prohibit an individual from holding a business civilly liable for COVID-related claims. The applicability of these statutes and breadth of protection varies by state. In some states, such as Iowa, the protection extends explicitly to landlord and tenants,^[1] while other state statutes define persons broadly to include individuals, for profit organizations, and nonprofit organizations.^[2]On the other hand, there are some states that currently have no COVID liability shield statutes while others have proposed bills to address COVID liability that are still pending.

Of course, there are limitations to the liability protection granted by the liability shields. First, most, if not all, of the statutes exclude liability protection if the individual or organization being sued acted with willful or wanton misconduct, intentional misconduct, or gross negligence. Additionally, there are some states that explicitly require that the individual or organization being sued was in compliance with the CDC, state, and local guidance at the time of the COVID exposure in order for the COVID liability shield to apply.^[3] Moreover, many employment and discrimination laws still apply, such as the American with Disabilities Act, Fair Housing Act, Worker’s Compensation laws, the Occupational Safety and Health Administration,  and other anti-discrimination and employment laws. States have also put time limits on the applicability of the statutes. For example, the Ohio state liability shield applies from March 9, 2020, to September 30, 2021.^[4]

The intent of these statutes is to provide COVID liability protection for businesses and other organizations. However, it is important to note that it is unclear how these statutes will play out in court and whether the statutes will be construed broadly or more narrowly when applied to a certain situation. The takeaway here is if an individual sues a fraternity, sorority, or house corporation for a cause of action based on the exposure or contraction of COVID-19 (such as negligence), the first line of defense should be to review the specific state COVID liability shield statute to see if it would apply to shield the organization from liability. However, it is still important for fraternities and sororities to stay informed of the CDC, local, and state health department guidelines and local and state regulations regarding COVID-19 and to take reasonable steps to implement same.

[1]SeeS.B. 2338, 88th Gen. Assemb. (Iowa 2020).

[2]SeeH.B. 606, 133rd Gen. Assemb., Reg. Sess. (Ohio 2020).

[3]SeeH.B. 4, 32nd Leg., Reg. Sess. (Alaska 2021); H.B. 6030, 100th Leg., Reg. Sess. (Mich. 2020); Miss. Code Ann. § 11-71-5 (2020).

[4]H.B. 606, 133rd Gen. Assemb., Reg. Sess. (Ohio 2020).