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Ohio Provides Qualified Liability Shield From COVID-19 Claims

By M. Scott Young, Anthony P. McNamara and William J. Hubbard
of Thompson Hine
September 2020

On September 14, Ohio Governor Mike DeWine signed into law a qualified and temporary liability shield against claims based on exposure to or infection from SARS-CoV-2 (aka COVID-19), MERS-CoV (aka coronavirus that causes Middle East respiratory syndrome) and SARS-CoV (aka coronavirus that causes severe acute respiratory syndrome). The law, Amended Substitute House Bill 606, grants qualified immunity from civil actions for damages based in whole or in part on injury, death or loss to person or property caused by these viruses, unless it is established that the exposure to, or the transmission or contraction of, any of the viruses
or their mutations resulted from the reckless, intentional, willful or wanton misconduct of the person against whom the action is brought. However, even if there is no immunity, the law prohibits class actions from being brought.

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It also provides that government orders, recommendations or guidelines neither create nor can be construed as creating a duty of care that may be enforced in a cause of action or that may create a new cause of action or substantive legal right against any person with respect to the matters contained in the government order, recommendation or guideline. Such guidelines are also presumed to be irrelevant to the existence or breach of a duty of care and inadmissible in legal actions to establish the existence of a breach of such a duty. The law states that the rationale for this qualified liability shield is that recommendations regarding how best to avoid infection with COVID-19 have changed frequently where the recommendations are not based on well-tested scientific information. The law notes specifically that “the Centers for Disease Control and Prevention (CDC) for the first eight weeks of the COVID-19 health emergency recommended that members of the general public not wear masks since most masks are ineffective in protecting individuals from viruses. The CDC then reversed its recommendation and started encouraging members of the general public to wear masks in public places. Ohio businesses need certainty and consistency to enable them to reopen.”

The law’s qualified immunity provisions apply retroactively from March 9 and extend through September 30, 2021. This is good news for Ohio employers concerned about controlling the potential risk of liability for employees’, independent contractors’ and customers’ claims related to the viruses covered by this law through the end of this year. Because the bill is temporary and does not absolve all potential liability for the covered viruses, employers should
continue to vigilantly comply with existing guidance and regulations designed to control exposure to the covered viruses, including COVID-19, for employees, independent contractors and customers. It is also important to note that this law does not impact any potential liability exposures that may exist in the context of federal law and related compliance with OSHA regulations.

Call BG Consulting Group at 216-956-0378 to discuss the impact of this law and other COVID-19 related issues on your business, and get help creating a plan to address them.