On September 14, 2020, Ohio Governor Mike DeWine signed House Bill 606 (H.B. 606), aimed at protecting health care providers, businesses and other individuals and entities from certain COVID-19-based lawsuits. Under the bill, health care provides, EMT's, and a number of other health care institutions are covered. Additionally, large and small businesses including both for-profit and nonprofit entities, as well as, governmental entities, religious entities, schools, and universities are covered by the bill. H.B. 606 was first introduced back in April and, at one point, had competition in Senate Bill 308, which sought even broader protections for businesses.[1] Ohio now joins Idaho, Tennessee, Nevada, and Georgia in enacting bills shielding businesses from COVID-19 liability in certain circumstances.
What Does House Bill 606 Say?
H.B. 606 aims to protect various groups from lawsuits relating to actions taken during the COVID-19 pandemic, with the primary beneficiaries being health care providers.[2] The bill would make health care providers immune from professional disciplinary action or tort liability for acts, omissions, or decisions related to the provision of health care services, including the decision to withhold health care services.[3] The bill would also protect health care providers from liability arising out of their compliance with an executive order or director's order issued during the pandemic.[4]
Moreover, under H.B. 606, a health care provider would not be liable for any claim relating to the provider's inability to treat, diagnose, or test for illnesses due to an executive order or an order from the local board of health.[5] This includes situations where the provider is unable to perform elective procedures because of COVID-19 restrictions.[6]
Health care providers would only be liable in tort under H.B. 606, if their act, omission, decision, or compliance constitutes reckless disregard for the consequences so as to affect the health or life of a patient or constitutes willful or wanton misconduct. However, H.B. 606 expressly forbids class actions even if the claim is based on reckless disregard or willful or wanton misconduct.[7] A health care provider can be subject to professional disciplinary action if their act, omission, decision, or compliance is grossly negligent.[8] Gross negligence would mean the health care provider's conduct demonstrated a lack of care so great that it appears to be a conscious indifference to the rights of others.[9]
H.B. 606 also protects businesses from liability for claims arising out of exposure, transmission, or contraction of COVID-19.[10] Under the bill, businesses of all size are covered as well as both for-profit and nonprofit entities, governmental entities, religious entities, schools, and universities.[11]
A business is liable if the exposure, transmission, or contraction of COVID-19 was the result of reckless[12] or intentional conduct or willful or wanton misconduct.[13] However, H.B. 606 expressly forbids class actions even if the claim is based on reckless or intentional conduct or willful or wanton misconduct.[14] The bill goes on to state that executive orders, director's orders, and federal guidance do not establish a new cause of action and are not admissible evidence at trial.[15] This means that orders from the Governor, Ohio Director of Health, and guidance from the CDC would be inadmissible at a trial under this bill.
Finally, H.B. 606 applies to acts, omissions, conduct, decisions, or compliance beginning on March 9, 2020, the date of Governor DeWine's Executive Order 2020-01D declaring a state of emergency due to COVID-19, through September 30, 2021.
How Does this Affect My Business?
Businesses will receive substantial protection from lawsuits predicated on customers catching COVID-19 at a place of business or in the course of a business providing its services. Of course, businesses still face potential liability if they intentionally expose customers and employees to COVID-19. Businesses can also face liability if they simply ignore signs that their business practices are not reasonably sufficient at protecting employees, vendors, customers from the spread of COVID-19. Businesses would be well served by continuing to find ways to ensure social distancing is observed and appropriate steps are taken and enforced to assure employees and customers are protected from potential sources of transmission.
[1] To learn about the differences between the House and Senate bills see Faruki's June 5, 2020 blog post.
[2] Under the statute, "'[h]ealth care provider' means a health care professional, health care worker, direct support professional, behavioral health provider, or emergency medical technician or a home health agency, hospice care program, home and community-based services provider, or facility, including any agent, board member, committee member, employee, employer, officer, or volunteer of the agency, program, provider, or facility acting in the course of the agent's, board member's, committee member's, employee's, employer's, officer's, or volunteer's service or employment." H.B. 606 §1(A)(20)
[3] H.B. 606 § 1(B)(1)(a)-(b).
[4] H.B. 606 § 1(B)(1)(c).
[5] H.B. 606 § 1(B)(4).
[6] Id.
[7] H.B. 606 § 1(D).
[8] H.B. 606 § 1(B)(2)-(3).
[9] H.B. 606 § 1(A)(18).
[10] H.B. 606 § 2(A).
[11] H.B. 606 § 2(D)(2).
[12] "Reckless conduct" under the statute means, "conduct by which, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause an exposure to, or a transmission or contraction of," COVID-19. H.B. 606 § 2(C)(3).
[13] H.B. 606 § 2(A).
[14] H.B. 606 § 2(C).
[15] H.B. 606 §§ 2(B), 3(B).
