On March 19, 2021, Governor Jim Justice signed legislation enacting a coronavirus liability shield law. Senate Bill 277, the COVID-19 Jobs Protection Act (“the Act”), is effective retroactively from January 1, 2020 and applies to any cause of action accruing on or after that date. The Act’s stated purpose is to eliminate liability and to “preclude all suits and claims against any persons for loss, damages, personal injury, or death arising from COVID-19” and to “[p]rovide assurances to businesses that reopening will not expose them to liability for a person’s exposure to COVID-19.”1 The liability protections afforded by the Act are broad.
The new law, which is contained in the newly added article 19 to West Virginia Code chapter 55, provides that 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.”2 Under the Act, “arising from COVID-19” also includes, “[i]mplementing policies and procedures designed to prevent or minimize the spread of COVID-19.”3 Give the broad scope of the Act, it could provide protections for all businesses, not just those connected to healthcare, related to their efforts in slowing the spread of COVID-19 to customers, employees, vendors, patients, etc. For example, if a company enacts a new rule preventing an employee from coming to work sick, even if the symptoms are not COVID-19 related, and fires an employee for violating that policy, the company may be protected from a future discrimination claim filed by that employee.
The Act also protects those who design, manufacture, label, sell, distribute, or donate defined products in response to COVID-19, and those who repurposed businesses to provide household disinfectants, cleaning supplies, and personal protective equipment in response to COVID-19.4
Exception to Limit on Liability
The Act does not, however, provide protection from liability to a person who had knowledge of a defect in the product and “acted with conscious, reckless, and outrageous indifference to a substantial and unnecessary risk that the product would cause serious injury to others; or [a]cted with actual malice.” Any claim made under this exception must be brought within one year of the date of injury.5
The Act also provides that “workers’ compensation benefits shall be the sole and exclusive remedy” for “work-related injury, disease, or death caused by or arising from COVID-19 in the course of and resulting from covered employment.”6
The COVID-19 Jobs Protection Act will allow businesses to reopen without the threat of liability related to COVID-19 and adds West Virginia to a growing list of states enacting similar COVID liability shield laws.