On February 12, 2021, Governor Ivey signed into law legislation that provides civil liability protections to Alabama businesses and healthcare providers related to COVID-19. The legislation provides broad immunity to ensure businesses are able to remain open and provides much-needed protection for healthcare providers on the front lines of fighting COVID-19.

Who Is Protected?

“Covered entities” can claim protection under the new legislation (the “Act”).  The Act 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.

What Is Protected?

There are two types of activities covered – health care services or treatment and health emergency claims. For health care 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-19, 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 contracted COVID-19 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 Coronavirus expires, whichever is later.

What Does It Mean?

Like all immunity statutes, this does not mean a business or healthcare provider will not be sued for COVID-19 related issues.  Those lawsuits are sure to come.  However, covered entities can assert immunity and would be entitled to dismissal of any lawsuit, except in very limited circumstances.  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 avoid dismissal of a lawsuit.

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.” It is important to note that this Act does not affect an individual’s rights to receive benefits under the Alabama 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 Alabama State Health Officer, the Alabama State Board of Health, and the Centers for Disease Control and Prevention.
• 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 text of the Act can be found here.

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