Trial Magazine

This past year, state legislatures faced intense pressure to pass transmission immunity laws, which provide corporations, businesses, and schools with immunity from liability for negligently exposing their employees and customers to the coronavirus. Despite public outcry about the lack of accountability, as of July, 31 states have passed laws or signed executive orders resulting in few repercussions for corporations, businesses, or schools that negligently expose their employees to the coronavirus.¹

Although each law is drafted differently, many share similarities as to who is immune from liability and what actions are protected. The majority of the laws use sweeping language such as “businesses,” “persons,” or “premises” to provide immunity to a broad swath of people and corporations.

Not only do these vague terms encompass institutions with high levels of coronavirus transmission such as meatpacking plants and nursing homes, but they also include schools, universities, government entities, and religious institutions. The broad strokes of these definitions are concerning because they immunize almost any actor for negligently transmitting the coronavirus.

Scope of State Legislation and Executive Orders

Although these transmission immunity laws tend to shield almost all actors, most provide immunity only for negligent exposure to the virus. This differs significantly from the coronavirus health care immunity laws that states have passed, which typically provide immunity for any actions taken during a state of emergency.²

However, some states, such as Tennessee and West Virginia, have drafted their laws to shield negligent actions “arising from COVID-19,” which provides protection for a broader scope of activities.³ West Virginia’s law, for example, provides immunity for “any act from which loss, damage, physical injury, or death is caused by a natural, direct, and uninterrupted consequence of the actual, alleged, or possible exposure to, or contraction of, COVID-19, including services, treatment, or other actions in response to COVID-19.”⁴

The West Virginia law lists a wide array of actions that would fall under these protections, including providing services or products as an essential business or higher education institution and actions taken in response to federal, state, and local orders and recommendations.⁵ As written, this could cover anything a business does during the coronavirus emergency period if it was following government guidance or providing services as an essential business.

The most concerning aspect of transmission immunity is that under most laws, businesses and other covered entities are not required to follow any coronavirus guidance in exchange for immunity. Many of the state laws are silent about requiring businesses to comply with federal, state, or local guidance, and some laws only require businesses to attempt to follow the guidance to receive immunity.⁶

Practically speaking, with no legal consequences for their actions, businesses have no incentive to protect their employees. In addition to the lack of safety requirements, several state laws require plaintiffs to prove negligence through “clear and convincing evidence,” an unusually high standard in civil cases.⁷

Other states, such as North Dakota, allow a lawsuit to go forward only if plaintiffs can prove that they were exposed intentionally or with actual malice.⁸ If plaintiffs are forced to meet these standards to prove their cases, their ability to achieve justice through the legal system becomes nearly impossible.

Worker Vulnerability to COVID-19

Some corporations have failed to protect their employees during the pandemic and instead have focused on keeping profits steady.

In South Dakota, for example, the U.S. Department of Labor cited and fined Smithfield Packaged Meats Corp. for failing to protect its workers from exposure to the coronavirus.⁹ The plant potentially exposed thousands by not providing personal protective equipment (PPE) or enforcing social distancing, leaving workers to labor side by side without any adequate PPE.¹⁰ At a Tyson Foods meatpacking plant, there was an office pool betting on how many employees would become infected.¹¹

And egregious mistreatment of workers isn’t limited to these plants—almost every industry has a horror story about how their workers were treated during the pandemic.

What makes this behavior even more devastating is the lack of accountability corporations and employers will face for their negligence. Although civil justice provides a sense of finality and closure for clients, with most states passing laws to shield corporations from liability, it’s the families who will be left to pick up the pieces.

Kate Miceli is AAJ’s state affairs counsel and can be reached at kate.miceli@justice.org.

Notes

1. The following states have implemented an executive order or passed legislation related to transmission immunity: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey (limited to planned real estate development), North Carolina, North Dakota, Ohio, Oklahoma, Oregon (limited to schools), South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming. Alabama and Arkansas had executive orders that were later overridden by legislation. A compilation of the laws is on file with the author.
2. See, e.g., S. 1377, 55th Leg., 1st Reg. Sess. (Ariz. 2021); S. 72, 2021 Leg., 1st Reg. Sess. (Fla. 2021); S. 359, 2020 Gen. Assemb., 2020 Spec. Sess. (Ga. 2020).
3. S. 8002, 111th Gen. Assemb., 2d Extraordinary Sess. (Tenn. 2020); S. 277, 85th Leg., 2021 Reg. Sess. (W. Va. 2021).
4. S. 277, 85th Leg., 2021 Reg. Sess. (W. Va. 2021).
5. Id.
6. See, e.g., S. 30, 2021 Leg., Reg. Sess. (Ala. 2021); S. 1377, 55th Leg., 1st Reg. Sess. (Ariz. 2021); H.B. 1487, 93rd Gen. Assemb., 2021 Reg. Sess. (Ark. 2021); S. 359, 2020 Gen. Assemb., 2020 Spec. Sess. (Ga. 2020); H.B. 6, 65th Leg., 1st Extraordinary Sess. (Idaho 2020); S. 1, 122nd Gen. Assemb., 1st Reg. Sess. (Ind. 2021) and H.B. 1002, 122nd Gen. Assemb., 1st Reg. Sess. (Ind. 2021); S. 2338, 88th Gen. Assemb., 2020 Reg. Sess. (Iowa 2020); S. 5, 2021 Gen. Assemb., 2021 Reg. Sess. (Ky. 2021).
7. See, e.g., S. 72, 2021 Leg., 1st Reg. Sess. (Fla. 2021); S. 1, 122nd Gen. Assemb., 1st Reg. Sess. (Ind. 2021); S. 147, 124th Gen. Assemb., 2021–2022 Sess. (S.C. 2021); S. 8002, 111th Gen. Assemb., 2d Extraordinary Sess. (Tenn. 2020). At the time of writing, no bills proactively protecting workers have been passed, but some have been introduced in state legislatures.
8. H.B. 1175, 67th Leg., 2021 Reg. Sess. (N.D. 2021).
9. U.S. Dep’t of Labor, News Release: U.S. Department of Labor Cites Smithfield Packaged Meats Corp. for Failing to Protect Employees From Coronavirus, Sept. 10, 2020, https://www.dol.gov/newsroom/releases/osha/osha20200910.
10. James Doubek, Workers’ Advocate Says South Dakota Pork Plant Delayed Action on Coronavirus, NPR, Apr. 17, 2020, https://tinyurl.com/bd9v43kw.
11. Laurel Wamsley, Tyson Foods Fires 7 Plant Managers Over Betting Ring on Workers Getting COVID-19, NPR, Dec. 16, 2020, https://tinyurl.com/4j2yw5zc.