West Virginia Legislature Concludes Action on COVID-19 Jobs Protection Act
March 11, 2021
On March 11, 2021, the West Virginia Legislature concluded legislative action on Senate Bill 277, the COVID-19 Jobs Protection Act (the “Act”). The Act provides liability protection to persons and entities by prohibiting certain claims arising from the COVID-19 pandemic, COVID-19, or impacted care. The Act will now head to Governor Jim Justice, who is expected to sign the Act into law.
The new law, which will be codified at §55-19-1 et seq., prohibits claims “against any person, essential business, business, entity, health care facility, health care provider, first responder, or volunteer for loss, damage, physical injury, or death arising from COVID-19, COVID-19 care, or impacted care.” The term “person” broadly encompasses not only individuals and businesses, but also governmental entities, schools, institutions of higher education, religious organizations, and nonprofit organizations.
The Act protects against claims arising from “COVID-19,” “COVID-19 care,” and “impacted care.” Under the Act, claims “arise” from COVID-19 if the claims are caused by “actual alleged, or possible exposure to or contraction of COVID-19,” or if they result from services, treatment, or other actions in response to COVID-19. The Act provides a non-exhaustive list of examples, including implementing policies and procedures, testing, delay or modification of scheduling or performing a medical procedure, and actions taken in response to governmental recommendations and guidelines. The Act applies retroactively from January 1, 2020, and will apply to any cause of action accruing on or after that date.
In Section 2 of the Act, emphasizes the need to protect health care providers and health care facilities from liability because the diagnosis and treatment of COVID-19 evolved rapidly and without the opportunity for the medical community to develop definitive, evidence-based medical guidelines. Thus, the Act prohibits claims related to the diagnosis and treatment of COVID-19, as well as for non-COVID-19 care that was adversely affected by the COVID-19 emergency. However, the “impacted care” protections will not prevent individuals from bringing claims pursuant to W. Va. Code § 55-7B-1 that arose during the COVID-19 emergency, provided that the claims are unrelated to COVID-19 or the COVID-19 emergency. If such claims appear to touch on “impacted care” as defined under § 55-19-4, then defendants can raise the issue of “impacted care” and have an affirmative defense to such claims.
Not only does the Act provide protections against claims arising from COVID-19, COVID-19 care, and impacted care, but the Act also includes products liability protections for those who design, manufacture, label, sell, distribute, or donate products in response to COVID-19. These protections apply to those who make such products in the ordinary course of their business and those who do not. However, these provisions come with limitations, and protection will not be afforded to those who (1) had actual knowledge of a defect in the product, or (2) acted with actual malice.
Section 6 of the Act tackles the interplay between the Act and workers’ compensation claims. Essentially, the Act allows employees to file workers’ compensation claims for a work-related injury, disease, or death arising from COVID-19 during the course of employment if the employer acted with deliberate intention. In these circumstances, the claim for workers’ compensation benefits shall be the employee’s sole and exclusive remedy.
Although the Act will prohibit most COVID-19-related claims, the Act does carve out a narrow exception. Notwithstanding the provisions regarding products liability claims or workers’ compensations claims, the Act does not provide protections for persons or entities who engaged in intentional conduct with actual malice. With this exception, individuals will be able to bring claims against those whose actions meet this criterion.
As West Virginia continues to roll out its vaccination efforts, public health guidelines will be modified, and more businesses will reopen. With these protections in place, West Virginia will be a good position to start rebuilding its economy and to continue providing medical care to its citizens. With COVID-19 liability claims rising across the country, many states are passing legislation like West Virginia’s COVID-19 Jobs Protection Act. States are taking different approaches to COVID-19 liability protections, so lawyers and their clients need to be aware of the latest legislation. States may offer different protections depending on if a person or entity is a health care provider, health care facility, or other essential business. For example, a corporation might be protected from COVID-19 claims in West Virginia, but not in another state in which it conducts business. Lawyers and their clients must be prepared to address the issues that may arise from these different legal landscapes. Jackson Kelly is proud to have played a key role in drafting and testifying to the West Virginia Legislature on the Act, and we look forward to advising clients and other interested parties on the effects.