Will You Be Immune to COVID-19 Lawsuits?

As businesses and institutions of higher education begin returning to in-person work or instruction, entities continue to grapple with reopening and the probability of infection despite following all current health guidelines. The evolving guidance from health officials, the federal, state and local governments means that businesses and institutions will be constantly monitoring and updating procedure and protocols in response to the public health emergency.

Despite these best efforts, businesses and institutions of higher education are faced with the grim prospect that some of their employees, students, faculties, and staff will become infected with Coronavirus disease 2019 (COVID-19) or require quarantine isolation because of exposure. In recognition of the difficult balancing act between reopening and possible infection, New Jersey Senate Bill 2634 seeks to give some protection against civil lawsuits regarding exposure to COVID-19 or any other related viral strains.

Proposed Legislation Impact

Bill S2634 proposes immunity from civil actions to business entities, non-profit organizations, and private and public institutions of higher education. The immunity would also extend to trustees, directors, officers, employees, agents, servants, and volunteers. The Bill also grants immunity to public entities and their employees.

The proposed legislation would provide businesses and institutions of higher education claims immunity above the level to which they are already entitled. The immunity proposed in S2634 is predicated on the fact that businesses and institutions of higher education meet or exceed minimum governmental health and safety measures to mitigate exposure to COVID-19. In order to claim immunity, the covered entities must assure good faith compliance with the existing mandates. It is likely that the good faith compliance will become an evolving standard as more guidance is received from public health agencies, federal, state, and local governments.

For private businesses or institutions of education, immunity would extend to administrative proceedings concerning any professional disciplinary action. The proposed legislation also proposes immunity to administrative actions relating to suspension, revocation, refusal to issue or refusal to renew any license, certification, certificate, or permit. The Bill does not expressly extend this immunity to public entities.

Regardless of whether the entity is public or private, the Bill proposes immunity for instances of COVID-19 exposure if 1) the person was required to be on the premises; 2) the person was on the premises by express or implied invitation or permission; or 3) the person was at some other place in the course of providing services or volunteering on behalf of the covered entity.

Actions Not Covered

As proposed, S2634 expressly denies immunity to damage caused by willful, wanton, or grossly negligent acts of commission or omission. Additionally, this proposed legislation does not provide employers with immunity from workers compensation claims filed by an employee relating to his/her exposure or infection.

Bottom Line

The Bill still needs to be passed by committees in both the Senate and Assembly before facing full floor votes. If signed into law, the COVID-19 Immunity would take immediate effect and apply retroactively to March 9, 2020. To determine whether you or your agent will be immune from civil and/or administrative actions, please contact Jennifer Roselle, Esq., Counsel in the firm’s Labor and Human Resources Counseling & Compliance Practice Groups via email here or Daniel Pierre, Esq., Associate in the firm’s Labor Practice Group via email here or call 973.533.0777.