Indiana Senate Passes COVID-19 Civil Liability Immunity Bill

On January 28, 2021, with an approval vote of 40-8, the Indiana State Senate passed Senate Bill No. 1—a COVID-19 civil immunity bill. As noted in our prior alert, the legislation, if signed into law, will shield businesses and their staff and virtually any other “person”[1] from coronavirus-related civil lawsuits, except for lawsuits alleging gross negligence or willful or wanton misconduct under Indiana law.

The final version of the bill makes clear that the liability protections extend only to tort actions and clarifies that the immunity protections do not affect the duty of care owed to patients by nursing facilities, nursing homes or skilled nursing homes nor do they extend to claims of fraud or intentionally tortious acts. It also expands the definition of “COVID-19” to include mutated forms of COVID-19 and specifically extends immunity to manufacturers and suppliers[2] who produce “COVID-19 protective products,” including personal protective equipment (PPE), medical devices, equipment, supplies and medications used to treat or prevent the spread of COVID-19, tests to diagnose COVID-19 and products designed to clean or disinfect to prevent the spread of COVID-19. Senate Bill No. 1 was also amended to include a provision prohibiting the filing of any class action lawsuit “based on tort damages arising from COVID-19” or from the “design, manufacture, labeling, sale, distribution or donation of a COVID-19 protective product.

The final version of Senate Bill No. 1 continues to exclude claims brought under the Indiana Worker’s Compensation Act and Occupational Disease Act. If individuals believe they contracted COVID-19 at their workplace, the employee’s exclusive remedy against the employer is to file a claim with the Worker’s Compensation Board of Indiana, not a civil action against the employer. The bill also continues to exclude claims brought by employees under Indiana’s Occupational Safety and Health Act (“IOSHA”), which means employees could still 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,” and that IOSHA can still cite and assess fines to employers for failing to comply with its health and safety standards. The final version also adds an exclusion for unemployment compensation. As passed, Senate Bill No. 1 will provide civil immunity retroactively, effective March 1, 2020, and expire on December 31, 2024.

On February 1, 2021, the Indiana House of Representatives approved House Bill 1002, which is also aimed at protecting businesses from COVID-19 related lawsuits. The House legislation varies slightly from the Senate version. Most notably, the House version has a shorter duration and would expire on March 31, 2022 (as opposed to December 31, 2024). Each chamber will now work together to submit a comprehensive version to Governor Eric Holcomb, who has pledged that he will sign a COVID-19 immunity bill into law.

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.