The COVID-19 Jobs Protection Act: Liability Immunity for Health Care Facilities on the Horizon in West Virginia

On February 19, 2021, the West Virginia Senate passed SB 277, the “COVID-19 Jobs Protection Act.” The purpose of the Act is stated to “eliminate the liability of the citizens of West Virginia and all persons including individuals, health care providers, health care facilities, institutions of higher education, businesses, manufacturers, and all persons whomsoever, and to preclude all suits and claims against any persons for loss, damages, personal injuries, or death arising from COVID-19.” The Act further seeks to assure West Virginia’s businesses and health care facilities that “reopening will not expose them to liability for a person’s exposure to COVID-19.”

The liability protections afforded by the Act are broad, and provide unlimited immunity to health care facilities, stating “Notwithstanding any law to the contrary, except as provided by this article, there is no claim against any person . . . health care facility, [or] health care provider . . . for loss, damage, physical injury, or death arising from COVID-19, COVID-19 care, or impacted care.” Importantly, the Act does not qualify the civil immunity provided to health care providers or health care facilities, unless the provider or facility distributed a “qualified product” to its patients or residents that they 1) knew to be incorrectly manufactured or designed, or 2) acted with actual malice in distributing an otherwise defective “qualified product.”

While SB 277 awaits passage by the West Virginia House of Delegates, the Act reflects a strong legislative prerogative by the State of West Virginia to afford broad liability immunity for long-term care facilities relative to the impossible task of ensuring that their patients and residents would not contract COVID-19.

The authors of this alert are closely monitoring liability protections for long-term care facilities and are standing by to advise and defend against COVID-19 claims.