From layoffs to leave laws, mandated vaccinations to limitations on services or materials, almost every business has been affected by COVID-19 in some way over the last year. The concern that has been top of mind for nearly all employers, however, is how to keep your employees safe from the virus and your business safe from liability. The West Virginia Legislature has responded with some protection.
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In March, West Virginia joined the ranks of a growing number of states that have enacted coronavirus liability shield laws. The state’s COVID-19 Jobs Protection Act shields businesses, institutions of higher education, manufacturers, and healthcare and medical providers as well as individuals from lawsuits borne from the coronavirus. More than 20 other states have enacted similar liability shield laws, including Alabama, Georgia, Indiana, Ohio, and Pennsylvania.
The Act comes at a time when many states, West Virginia included, are in the process of passing laws to reopen businesses, schools, medical facilities, and public institutions. The threat of impending liability, however, has left some businesses just as apprehensive to reopen their doors as they were to close them nearly a year ago. Chiefly, the Act’s purpose is to assure reopening businesses they won’t face liability for a person’s exposure to COVID-19.
Specifically, the Act provides there is “no claim 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.”
‘Additional Key Shields for Employers’
As a result, the Act does more than simply protect against the effects of the spread of or exposure to COVID-19. It offers additional key shields for employers.
First, the Act includes the words “arising from COVID-19” and defines them to cover acts such as “implementing policies and procedures designed to prevent or minimize the spread” of the virus. That’s pivotal for employers. For example, if your quarantine policy for individuals with the coronavirus or its symptoms results in wage or income loss (or even disciplinary action for breaching the policy), you’d be shielded by the Act for implementing it.
Second, in addressing employers, the Act states:
When a claim for workers’ compensation benefits is awarded to an employee . . . for a work-related injury, disease, or death caused by or arising from COVID-19 in the course of and resulting from covered employment, such claim for workers’ compensation benefits shall be the sole and exclusive remedy for such injury, disease, or death; providing that . . . limitations on liability shall not apply to any person, employee, or agent who engaged in intentional conduct with actual malice.
Under the above, employees who contract COVID-19 may file for and receive workers’ comp benefits, but they will be the only available remedy, taking civil action off the table. The only exception carved out by West Virginia’s new law (as well as the liability shield laws in other states) is if the employer or business is found to have “engaged in intentional conduct with actual malice,” more commonly described as deliberate intent.
Bottom Line
While the “new normal” continues to create unknowns for employers, West Virginia businesses can refocus on reopening with efforts in place to keep their employees and patrons safe, meanwhile knowing they’re shielded from liability with only narrow exceptions.
Bonnie J. Thomas is an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia. You can reach her at bonnie.thomas@steptoe-johnson.com.
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