Like many states, the Alabama legislature passed, and Governor Ivey signed into law, a bill that provides civil liability protections to Alabama businesses and healthcare providers related to COVID-19. On May 8, 2020, Governor Ivey issued an executive order providing similar civil immunity to businesses and healthcare providers, but this legislation provides further protection to ensure businesses are able to remain open and to provide much needed protection for healthcare providers on the front lines of fighting COVID-19.
Who is protected?
"Covered entities" can claim this protection. The legislation defines "covered entities" as businesses, healthcare providers, educational entities, churches, governmental entities, cultural institutions as well as the officers, directors, managers and employees of those entities. Each of these has a definition in the Act, but it covers a broad range of entities.
What is protected?
There are two types of activity covered - healthcare services or treatment and health emergency claims. Although it may sound like this is only applicable to healthcare entities, it is much broader. For healthcare providers, the Act applies to acts or omissions where the conduct complained of "resulted from, was negatively affected by, was negatively impacted by a lack of resources caused by, or was done in response to" the COVID-19 pandemic. As written, the Act should cover claims against a healthcare provider that may not directly involve the contraction or exposure of COVID-19.
Additionally, a "Health Emergency Claim" is any claim that arises from or relates to COVID, including any mutation of the virus. For a business (and any covered entity), immunity is available for any claim for "an actual, alleged or feared exposure to or contraction of COVID-19." Additionally, a covered entity can claim immunity if it is sued for efforts related to testing, monitoring or tracking or using precautionary equipment or supplies. For example, this would cover claims for negligence in the use of personal protective equipment or claims by a business patron that he/she contracted COVID while on the premises of the business.
Although the Act was only recently enacted, it is retroactive and applies to lawsuits filed on or after March 13, 2020, when the state of emergency was declared. Additionally, the liability protections afforded extend through December 31, 2021, or one year after a declared health emergency relating to COVID expires, whichever is later. Because we continue to be under a state of emergency, the immunity provisions will likely extend well into 2022. In fact, the current Presidential administration has indicated the national state of emergency will continue through the end of 2021.
What does it mean?
Like all immunity statutes, this does not mean a business or healthcare provider will not be sued for COVID related issues. Those lawsuits are sure to come. However, the covered entities will have the ability to assert immunity and would be entitled to dismissal. An individual suing a covered entity would have to show by "clear and convincing evidence" that the covered entity was acting wantonly, recklessly, willfully or with intentional misconduct to keep the claim alive.
If a lawsuit is filed and it is not dismissed based on the immunity provisions, claims for personal injury are limited to actual economic damages unless there is a serious physical injury. Serious physical injury is defined as a "death or injury that requires inpatient hospitalization of at least 48 hours, permanent impairment of a bodily function or permanent damage to a body structure." In other words, if a person sues for damages related to exposure or contraction of COVID, the only damages he/she could pursue would be out of pocket expenses for the alleged injury, such as medical expenses, and he/she would not be entitled to damages related to emotional distress or mental anguish. If a lawsuit is filed for the death of an individual and the court does not dismiss based on immunity, punitive damages would be available because those are the only damages available under Alabama law. It is important to note that this Act does not affect an individual's rights to receive benefits under the Workers' Compensation Act. Therefore, a business's employees could still seek recovery for contracting COVID-19 while on the job as a Workers' Compensation claim.
What should you do?
If you are a covered entity or you operate a covered entity, you should:
Abide by all public health guidance related to COVID-19, including proclamations, orders or rules issued by the Governor, the State Health Officer or the State Board of Health.
Document your efforts to comply with public health guidance.
Consider obtaining informed consent from patrons, visitors or patients regarding the possible risk of exposure to COVID-19.
The Governor's executive order can be found at https://www.alabamapublichealth.gov/legal/assets/soe-covid19-liability-protection-050820.pdf, and the legislation can be found at https://legiscan.com/AL/text/SB30/id/2289784/Alabama-2021-SB30-Enrolled.pdf.
Angie Smith is a Partner at Burr & Forman LLP practicing in the firm's Health Care Industry Group.