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Indiana Senate Considers COVID-19 Civil Liability Immunity Indiana Senate Considers COVID-19 Civil Liability Immunity

Indiana Senate Considers COVID-19 Civil Liability Immunity

On January 4, 2021, Indiana State Senators Liz Brown, Eric Koch, and Mark Messmer introduced a COVID-19 civil immunity bill— Senate Bill No. 1—which, if passed, would shield businesses and their staff and virtually any other “person”[1] from coronavirus-related, civil lawsuits. The proposed law is intended to reduce potential exposure to coronavirus litigation and encourage businesses to continue to operate amid the pandemic.

Under the proposed bill, a person is immune from civil liability for damages resulting from the exposure of an individual to COVID-19 on the premises owned or operated by the person, on any premises on which the person or an employee or agent of the person provided property or services to the individual; or during an activity managed, organized, or sponsored by the person. Thus, if an individual claims to have contracted COVID-19 while on the premises of a business, then the bill would provide legal protections to that business. Importantly, the bill does not provide absolute civil immunity. The bill specifically excludes actions or omissions rising to the level of gross negligence or willful or wanton misconduct under Indiana law, as proven by clear and convincing evidence.

A person who acts with reckless and intentional disregard of the possible consequences suffered by another can be liable for gross negligence or willful or wanton misconduct under Indiana law. In this instance, businesses may be liable if they or their staff recklessly or intentionally disregard the health and safety guidelines set forth by the Centers for Disease Control and Prevention, Occupational Safety and Health Administration, or other state and federal mandates to slow the spread of the coronavirus. Alternatively, a business that complies with applicable regulations and otherwise makes reasonable efforts to prevent and slow the spread of COVID-19 within its establishment would have strong arguments that it is protected under Senate Bill No. 1.

Senate Bill No. 1 specifically excludes claims brought under the Indiana Worker’s Compensation Act and Occupational Disease Act. This means that if an individual believes he or she contracted COVID-19 at his or her workplace, the employee’s exclusive remedy against the employer is to file a claim with the Worker’s Compensation Board of Indiana. This bill, if passed, will not impact the long-standing requirement that prohibits an employee from pursing a civil action against the employer for occupational injuries or exposures. 

Further, the bill excludes claims brought by employees under Indiana’s Occupational Safety and Health Act (“IOSHA”). Therefore, even if this bill passes, employees could, for example, raise claims under IOSHA’s General Duty Clause if an employer fails to provide a workplace that is “reasonably safe . . . and free from recognized hazards” that cause or are likely to “cause death or serious physical harm.” Similarly, IOSHA can still cite and assess fines to employers for failing to properly record and report COVID-19 work-related deaths, injuries and illnesses; for retaliating or discriminating against an employee who files a complaint or testifies; or for violating other specific standards that may relate to COVID-19 (e.g., standards related to Personal Protective Equipment, respirators, sanitation, etc.).

In current form, the bill would provide civil immunity retroactively, effective March 1, 2020, and extend through December 31, 2024. If passed, Indiana would join roughly several other states with similar legal protections in place.

The Indiana House has also introduced COVID-19 liability legislation, House Bill No. 1002. Like Senate Bill No. 1, the House’s proposed legislation prohibits the filing of civil actions for damages caused by exposure, transmission, or contraction of COVID-19, but specifically excludes acts or omissions constituting gross negligence or willful misconduct. In addition, however, the House’s proposed legislation expressly protects health care workers from certain professional discipline during a state emergency between Feb. 29, 2020, and April 1, 2022. It also prohibits the filing of any class action lawsuits against any defendant in a civil action that is permitted under the proposed statute. Both Senate Bill No. 1 and House Bill No. 1002 are considered priorities and are expected to be consolidated at some point.

If you have questions concerning either bill, their potential applicability to you or your business, or strategies for compliance and obtaining their intended protections, please reach out to Tami Earnhart, Christina Fugate, Drew Miroff, or Audrey Howard for more information.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

[1] “Person” is defined broadly to include individuals, associations, institutions, corporations, companies, trusts, limited liability companies, partnerships, political subdivisions, government bodies, offices, departments, divisions, and bureaus, and “any other organization or entity.”
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