While the efforts to pass a federal COVID-19 liability shield law have failed, Governor Doug Ducey’s recent signature on Arizona’s enactment marks the 28th state that has passed shield law legislation since the outbreak of COVID-19 in the United States. Similar legislation is pending in more than a dozen other states, and nearly a half dozen additional states have baked some form of liability shield into emergency executive orders currently in place. With this widespread addition to the legal landscape, businesses should become familiar with what these laws entail and whether one is in play in the states in which they operate.

What is a liability shield law?

Liability shield laws take different forms, but typically, they raise the threshold for anyone who wants to bring a lawsuit in connection with the COVID-19 outbreak, or eliminate the ability to bring a suit entirely. Although no state has provided total immunity to businesses facing claims related to COVID-19, these laws generally make it much more difficult for employees or patrons to bring a lawsuit based on harm that allegedly stems from a business’s handling of COVID-19 matters.

Notably, many of the laws apply retroactively to a date at or before the beginning of the COVID-19 outbreak. For example, West Virginia’s COVID-19 Jobs Protection Act dates back to January 1, 2020.

What are some examples of state COVID-19 liability shield laws?

South Dakota’s law raises an extremely high bar to a lawsuit based on COVID-19 exposure: unless an exposure results in a COVID-19 diagnosis and the exposure is the result of intentional exposure with the intent to transmit COVID-19, there is no basis for relief against an individual or business.

The Tennessee COVID-19 Recovery Act, a more typical formulation, provides that individuals or businesses cannot be liable for loss, damage, injury, or death that arises from COVID-19 unless the party filing suit against them proves by clear and convincing evidence that they caused the injury by an act or omission constituting gross negligence or willful misconduct.

The new Arizona law is an interesting variation, offering liability protection in the form of a “Good Samaritan” provision: where a person or provider acts in good faith to protect another—or the public—from injury from the pandemic, such a person or provider is not liable for damages in any civil action based on a claim that the person or provider failed to protect the other—or the public—from the effects of COVID-19. To overcome this presumption, a claimant needs to prove, by clear and convincing evidence, that the person or provider failed to act or acted with willful misconduct or gross negligence.

However, not all states’ COVID-19 liability shield laws are so broad.

What are some examples of liability shield laws that may not offer protection to all businesses?

Rhode Island’s governor issued an executive order designating certain health care workers as “disaster response workers” entitled to immunity from lawsuits related to COVID-19 except in cases of willful misconduct, gross negligence, or bad faith. Therefore, in Rhode Island, not all businesses are insulated.

Similarly, Vermont is considering a law that would offer civil immunity to licensed professionals providing essential services through an agreement with designated local or state-level emergency response officials. Functionally, this shield would offer immunity to certain health care providers and facilities for various actions taken in response to the COVID-19 outbreak, such as triaging access to services or equipment as necessary to respond to the pandemic. But, similar to Rhode Island, Vermont’s liability protections would not extend to all businesses.

Has my state passed a state liability shield law?

Most state legislatures have either passed or are considering a COVID-19 liability shield law. Additionally, many states (including Arkansas, Hawaii, New Mexico, and Pennsylvania) have some form of liability protection in place through executive order. Only Delaware, Maine, and Washington have no such law, either passed or pending, and no executive order offering any liability protection.

While it is critical to understand the change in the legal landscape that these liability shield laws entail, the presence of some form of liability shield cannot answer entirely the question of “Are we protected from COVID-19 lawsuits?” Every law or order is different in its application and breadth of coverage. Further, it is unclear yet how courts will apply these laws to particular fact patterns or whether these laws will be found enforceable—or even constitutional—by courts faced with applying them to a particular set of facts. At this time, there are few court cases challenging or applying these laws.

Armed with an understanding that there is significant variation from state to state in the manner and degree of protection offered, and that many of these shield laws remain untested by courts, businesses should be cognizant of how these laws could apply to their own operations, as well as what other options may be available, such as worker’s compensation insurance.