Ohio COVID-19 Immunity Protections Set to Expire Without Legislative Action

9/18/2021
Markus E. Apelis By Markus E. Apelis
SECOND KEY UPDATE: On September 27, 2021, Ohio State Reps. Rick Carfagna (R-Genoa Twp.) and Bill Seitz (R-Cincinnati) introduced H.B. 435 in the Ohio House of Representatives. The bill primarily seeks to regulate vaccine mandates, but also addresses the civil immunities from COVID-19 claims. Like H.B 424, this lates bill also address would codify the immunities created in Am. Sub. H.B. 606. Unlike H.B. 424, which would make the immunities permanent, H.B. 435 would extend the immunities another two years, until June 30, 2023. 
 
H.B 435 was referred to the Health Committee of the Ohio House. After business groups and healthcare providers expressed their opposition to the vaccine mandate provisions, a substitute bill was reported and referred to the House Rules and Reference Committee.

 

KEY UPDATE: Two days after we published this article, Ohio State Rep. J. Kyle Koehler (R-Springfield), introduced H.B. 424 in the Ohio House of Representatives. The bill seeks to address a number of issues relating to COVID-19.  Among these issues, H.B. 424 would codify the immunities created in Am. Sub. H.B. 606 and make them a permanent part of Ohio law. The bill keeps an identical general immunity against COVID-19 tort claims. The bill also maintains the immunity of healthcare providers, with some additional changes and qualifications. The bill also prohibits state and local agencies and officials, including public schools and universities, from requiring an individual receive a COVID-19 vaccine or show proof of the individual’s vaccination or immunity status.  The bill also prohibits state and local agencies and officials from denying the full and equal enjoyment of goods and services based on vaccination or immunity status, or taking adverse employment actions based on an individual’s vaccination or immunity status.

H.B. 424 was introduced on September 20, 2021.  It has not yet been referred to any committee, and no other legislative action has been taken. No corresponding legislation has been taken up in the Ohio Senate.

 

In the midst of the COVID-19 global health pandemic, the Ohio General Assembly enacted and Ohio Governor Mike DeWine signed into law sweeping legislation that was designed to limit legal exposure as a result of the SARS-CoV-2 novel coronavirus and the COVID-19 disease it causes. On September 14, 2020, Amended Substitute House Bill 606 became law, granting broad immunity to individuals and business owners during the pandemic.

You can read Gallagher Sharp’s analysis of Am. Sub. H.B. 606 and its immunity provisions by clicking here.

Now, one year later, with the COVID-19 global health pandemic still dominating the public’s attention and public health resources, and with individuals and businesses still grappling with the medical, financial, legal, and practical consequences of the pandemic, Ohio’s protections for these individuals and businesses appear to be coming to an end.

The emergency legislation included a number of provisions to provide legal protection against claims arising from the pandemic. The law provides immunity from lawsuits for personal injury, death, or property damage when the loss was caused by exposure to, or transmission or contraction of, the SARS-CoV-2 coronavirus and other viruses. In addition to the immunity protections, the law prohibits claimants from bringing class actions against individuals or businesses to pursue their claims. The law also makes clear that government orders, recommendations, or guidelines do not create legal duties that are enforceable as part of civil lawsuits, and renders public health guidance presumptively inadmissible in litigation.

These provisions of the emergency legislation were never intended to be permanent. As a result, the law includes a sunset provision, ending the applicability of these provisions on September 30, 2021. To date, although various members of the Ohio General Assembly have introduced new COVID-19-related legislation on a number of topics, no bill has sought to extend the protections of House Bill 606.

Without action from the legislature, the protections of the law soon will expire. The immunity from suit will certainly end. But, based on the way the law is drafted, the prohibitions against relying on government orders or public health recommendations and guidelines to form the basis of claims may well also disappear. To be sure, public entities, public employees, and others to whom other Ohio laws afford legal immunity will still be entitled to those same immunities they have always enjoyed. The broader immunity for claims relating to COVID-19, however, will no longer be in place. As a result, individuals and businesses would do well to take government orders and public health guidance into consideration (at a minimum) as part of their overall risk management strategies and pandemic mitigation efforts. Even if courts continue to refuse to adopt compliance with public health guidance as the legal basis for tort claims, taking those measures into account as part of an overall risk management strategy will allow individuals and businesses to demonstrate personal responsibility and accountability for public health – a perception that should serve them well if faced with a claim.

Gallagher Sharp continues to monitor any important developments concerning this law, along with other developments relating to the COVID-19 pandemic.  You can discuss the impact of the legislation on any pending or future claims or lawsuits with the attorney handling your particular matter or by contacting us.