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158,360,499
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Sunday, May 9, 2021

Global Statistics

All countries
158,360,499
Confirmed
Updated on May 9, 2021 4:22 am
All countries
136,716,577
Recovered
Updated on May 9, 2021 4:22 am
All countries
3,297,902
Deaths
Updated on May 9, 2021 4:22 am
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Kentucky Legislature Enacts Covid-19 Liability Protection For Businesses – Coronavirus (COVID-19)

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As the country slowly recovers from the economic devastation
caused by the COVID-19 pandemic, Kentucky’s lawmakers have
stepped in to provide protections to the businesses and workers
that will help get the Commonwealth back on its feet. On the last
day of the most recent legislative session, Senate Bill 5 became
law when the Governor declined to sign or veto it. This
legislation, similar to laws in 30 other states, offers immunity
from COVID-19-related negligence actions to business owners and
essential service providers working to prevent the spread of the
virus.

With the passage of SB 5, Kentucky businesses who reopen their
doors to the public can do so without fear of certain
COVID-19-related lawsuits. As long as business owners are complying
with executive actions for COVID-19 safety (including federal,
local, and industry-specific guidelines), SB 5 provides immunity
from negligence lawsuits by patrons who may have been exposed to
the virus on the business’s premises. The law also protects
businesses that are working to treat the virus, and services
performed outside the normal course of business in response to the
pandemic, like bourbon distilleries which produced
desperately-needed hand sanitizer.

Despite the wide immunity it offers, the new law does not
protect business owners who act in a malicious or grossly negligent
manner, or who intentionally ignore executive orders relating to
the declared COVID-19 emergency.

The other group protected by the codified version of SB 5 is
essential service providers. Under the law, the term
“essential service providers” encompasses the groups that
remained working throughout the mandated COVID-19 shutdowns, but
also adds to that group teachers, home healthcare workers, funeral
home employees, and local government employees. For the time SB 5
is in effect, essential service providers cannot be liable for
COVID-19 related claims.

From its inception, many organizations, like the Kentucky
Chamber of Commerce, lobbied for SB 5 and praised the effect it
would have on businesses. However, several amendments were
introduced to curtail SB 5 and ensure that citizens still retained
some jural rights.

For example, when originally proposed, SB 5 provided liability
protections that extended for one year after the emergency
declaration is withdrawn, revoked, or lapses. Later amendments
shortened these protections to expire on the date the state of
emergency expires.

The passage of this legislation appears to leave some
uncertainties as to the rights of businesses and citizens alike.
For instance, it is unclear to what extent a business needs to be
compliant with COVID-19 regulations in order to be protected under
this law. Does the bill protect businesses that comply with some,
but not all, executive actions and regulations related to COVID-19
such as the anticipated COVID-19 emergency standard soon to be
issued by OSHA?

Also, what implications, if any, does the bill have on the jural
rights of citizens, which ensures access to courts and prevents
eliminating a citizen’s ability to sue for certain causes of
action? Supporters have argued that SB 5 aligns with Kentucky’s
jural rights doctrine because it is limited in scope and
protection—it deals with an isolated situation, and it calls
for additional protections of private, non-governmental entities
that act as agents of the state during an emergency, and comply
with public orders. It remains to be seen whether this law can
withstand constitutional muster in the face of challenges, as the
answers to these questions will likely find their way to the
courts.

Kentucky’s neighbor to the north, Indiana, has enacted
similar legislation. Indiana law now provides civil
tort immunity to a person for damages arising from COVID-19 (1) on
the premises owned or operated by the person; (2) on any premises
on which the person or an employee or agent of the person provided
property or services to another person; or (3) during an activity
managed, organized, or sponsored by the person. The law further
precludes class actions based on tort damages arising from
COVID-19. Additionally, the law specifically protects manufacturers
and suppliers of COVID-19 protective products from civil tort
liability for harm resulting from the design, manufacture,
labeling, sale, distribution, or donation of such products. The
law, of course, is not without exceptions. For example, there is no
immunity provided for gross negligence or willful or wanton
misconduct, and these statutes remain in effect only until December
31, 2024. Implications of this new law largely remain to be seen,
and additional legislation is still being considered that would
provide even more expansive immunity.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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