On April 11, 2021, a new law was enacted to help protect Kentucky businesses from lawsuits related to COVID-19. The law, found in 2021 Ky. Acts Chapter 205, provides liability protection to “essential service providers” for “any claim or cause of action for an act or omission arising from COVID-19 that accrued on or after the date the emergency was declared on March 6, 2020, and until the emergency declaration is withdrawn, revoked, or lapses.” It was originally introduced in the Senate on January 5, 2021, as Senate Bill 5.
This is the second law passed in Kentucky related to legal immunity during the COVID-19 pandemic. On March 30, 2020, Governor Beshear signed Senate Bill 150 into law to allow for a quick response COVID-19 by protecting health care providers from liability related to certain health care decisions for patients with COVID-19.
The new law has a much broader scope, as it protects all businesses declared essential by Governor Beshear’s Executive Order No. 2020-257, dated March 25, 2020. These businesses include the following: charitable and social services organizations; individuals and businesses needed for transportation; financial institutions; mail, post, shipping, and pick-up services; individuals and businesses that produce, supply, prepare, and sell food; home-based care and services; and individuals and businesses that work in the supply chain for critical medical and pharmaceutical products. Additionally, the law provides liability protection to health care providers, Medicaid waiver providers, elementary and secondary schools (whether private or public), childcare providers, funeral businesses, local government agencies and political subdivisions, and manufacturers located in Kentucky that produced or are producing hygienic items and personal protective equipment.
As seen from the detailed list above, the law provides a large scope of immunity to businesses and individuals in a variety of industries. However, immunity will not apply in cases of “gross negligence, or wanton, willful, malicious or intentional misconduct.” Therefore, the law only protects businesses from claims related to ordinary negligence.
While the new immunity provisions should provide comfort to businesses that operated during the height of the pandemic, it is important to note that immunity from liability does not guarantee immunity from litigation. That is, a party can still file a lawsuit related to COVID-19 with the new law in place. It has yet to be seen how Kentucky courts will interpret this new law, but it can likely be utilized for swift dismissal of negligence claims related to COVID-19.
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