As the COVID-19 pandemic persists into 2021, legislators continue to raise concerns regarding potential liability for exposure to and injuries from the coronavirus. Among the primary concerns:
- Should policymakers limit the liability of businesses, schools and other organizations, particularly if they follow public health guidelines and don’t engage in grossly negligent behavior or willful misconduct?
- With hospitals running out of bed space, should health care professionals and facilities be protected?
- Should manufacturers of personal protective equipment (PPE) face potential liability if the PPE doesn’t work as intended as manufacturers had to ramp up production to meet demand?
Federal law may limit some COVID-19-related tort liability even under state tort law. For example, the Public Readiness and Emergency Preparedness (PREP) Act authorizes the U.S. Health and Human Services (HHS) secretary to issue a declaration providing immunity from liability for persons or entities covered under the Act for losses relating to the administration or use of specified countermeasures against COVID-19, unless the death or serious physical injury was caused by willful misconduct or by activities that fall outside the scope of the PREP Act declaration. The PREP Act created a compensation fund for injuries and deaths, which requires a congressional appropriation. The HHS secretary invoked the PREP Act on March 10, 2020, authorizing PREP Act immunity for the manufacture, testing, development, distribution, administration and use of covered countermeasures. The declaration has been amended by broadening the immunity scope to include respiratory protective devices and other items as covered countermeasures.
Further, §3215 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act makes individual volunteer healthcare professionals immune from liability for acts or omissions they commit while providing COVID-19 healthcare services during the COVID-19 public health emergency, but the section does not protect hospitals or healthcare professionals providing COVID-19 healthcare for profit.
The U.S. Chamber of Commerce and its Institute for Legal Reform advocate in favor of liability limitations. According to their poll, 67% of small businesses with 20 to 500 employees and 51% of small businesses with five to 19 employees are worried about the possibility of lawsuits related to coronavirus. In contrast, polls conducted by the American Association for Justice found that 60% of voters believe companies would not take proper precautions if the companies knew they could not be held accountable and 61% of voters believe business immunity in coronavirus cases would result in more people getting sick.
The law firm Hunton Andrews Kurth LLP set up a COVID-19 complaint website to track lawsuits filed in response to COVID-19. As of Jan. 25, 2021, 8,076 total complaints have been filed, with 151 focused on health care or medical malpractice and wrongful death and 147 complaints focused on the conditions of employment, including exposure to COVID-19 at work, wrongful death and personal injury. Thirty-seven complaints relate to personal injury or wrongful death from consumer exposure to COVID-19 in a public place. Fourteen complaints have been filed for wrongful death or personal injury arising from situations other than employment, consumer or healthcare settings.
In the 2020 regular and special legislative sessions, 32 states, Guam, Puerto Rico and the District of Columbia introduced 184 bills to address COVID-19 liability issues. From those proposed measures, 21 states, Puerto Rico and the District of Columbia enacted legislation in 2020. In these states, 27 enacted bills addressed health or medical liability, 28 addressed business or general liability and 11 addressed PPE liability.