by James C. Sherlock
Remember the educational cartoon video “I’m Just a Bill”? Well this is different. This is the Virginia General Assembly in emergency session 2020.
I offer here an example captured in the brief history of a single bill in the House of Delegates that is very illustrative of the vast differences between the attitudes of the two parties.
Let’s see what happened to a bill to provide immunity from civil claims related to the transmission of or exposure to the COVID-19 virus when it got into the House Committee for Courts of Justice.
We will first examine House Bill 5037 offered by Republican Jason Miyares. It was designed to grant immunity, except in cases of gross negligence or willful misconduct, to public officials and businesses who followed the rules.
To quote the main provisions of HB 5037 COVID-19 virus; immunity from civil claims related to the transmission of or exposure to the virus:
1. Ҥ 1. A. For the purposes of this act, unless the context requires otherwise:
“Person” includes (i) individuals, corporations, nonprofit corporations, business trusts, estates, trusts, partnerships, limited liability companies, sole proprietorships, associations, and joint ventures; (ii) the Commonwealth or any locality, or any agent thereof, or any person acting on behalf of the Commonwealth or any locality; and (iii) any other legal or commercial entity.
“Personal protective equipment” means equipment worn to minimize exposure to the COVID-19 virus and includes gloves, medical masks, N-95 respirators, eye protection, gowns, aprons, boots or closed-toe work shoes, cleaning detergents, hand sanitizers, and cleaning products.
B. In the absence of gross negligence or willful misconduct, no person shall be liable for any civil cause of action arising from any act or omission alleged to have resulted in the contraction of or exposure to the COVID-19 virus, provided such person has complied with applicable federal, state, and local policies, procedures, and guidance regarding COVID-19.
C. In the absence of gross negligence or willful misconduct, no person who designs, manufactures, labels, or distributes any personal protective equipment in response to the COVID-19 virus shall be liable for any civil cause of action arising out of the use of such equipment.
D. The provisions of this act shall not limit or abrogate any other defenses or immunities available at law.
E. The provisions of this act shall not apply to claims before the Virginia Workers’ Compensation Commission seeking benefits payable under the Virginia Workers’ Compensation Act (§ 65.2-100 et seq.).”
The Democrats who run the Committee would not have that. They “incorporated” Del. Miyares bill into House Bill 5074, Del. Sullivan, eliminated any discussion of PPE and added the following:
- Changed B. to read: “In the absence of gross negligence or willful misconduct, no person shall be liable for any civil cause of action arising from any act or omission alleged to have resulted in the contraction of or exposure to the COVID-19 virus: “
“provided that, with respect to the location at issue, such person has complied with the most recent binding applicable federal, state, and local laws, policies, procedures, and guidance regarding COVID-19 at the time the cause of action accrued, including without limitation and at a minimum the COVID-19 Emergency Temporary Standard or any COVID-19 Permanent Standard, whichever is then in effect. The person shall bear the burden of proving entitlement to the immunity provided herein.”
- Eliminated C. and added in its place:
“Every person shall provide, with respect to any location owned by the person or under the person’s possession, custody, or control, reasonable notice of actions taken by the person for the purpose of reducing the risk of transmission of COVID-19 to individuals present on the premises. In the absence of gross negligence or willful misconduct, no person shall be liable for the failure of any individual not under the control of such person to comply with rules, policies, or guidelines contained in the notice required by this act. This act shall not apply to any premises owned by an individual, other than a premises that is used in the operation of a sole proprietorship.”
- and added to E.:
“The provisions of this act do not create a defense to liability in any administrative proceeding or civil action brought to enforce the provisions of the COVID-19 Emergency Temporary Standard or any COVID-19 Permanent Standard, whichever is then in effect.”
It is hard to figure out how the final bill provides any functional liability protections to any Virginia public official or business, especially business. That, of course, was the Democrats’ intent. It is as lawyer and plaintiff friendly as possible.
The House Courts of Justice Committee has 21 members, 13 Democrats and 8 Republicans. The vote on HB 5074, the Democratic version, was 13 yeas, 8 nays.
Of the 13 Democrats, eleven are lawyers. One of the two non-lawyers, Vice Chair Vivian Watts, counts the Virginia Trail Lawyers Association as her top donor.
It is particularly illustrative that ”The person shall bear the burden of proving entitlement to the immunity provided herein.” Nice touch.
Another: “The provisions of this act do not create a defense to liability in any administrative proceeding or civil action brought to enforce the provisions of the COVID-19 Emergency Temporary Standard or any COVID-19 Permanent Standard, whichever is then in effect.”
That is a pretty straightforward roadmap for plaintiffs lawyers should they need one.
Virginia’s COVID 19 Temporary Emergency Standard, issued on July 15, will be enforced by the Virginia Occupational Safety and Health program (VOSH).
It was analyzed by Ogletree Deakins, a massive law firm with offices all over this country and the world as follows:
“The emergency standard includes an extensive list of requirements that all employers within VOSH’s jurisdiction must follow, regardless of the level of exposure to COVID-19, and additional requirements for employers based on exposure level. The emergency standard goes into effect on July 27, 2020. The standard will expire after six months or “upon expiration of the Governor’s State of Emergency,” but the Board will be considering the adoption of a permanent standard during this same time period.
Key Takeaways
…The standard is comprehensive, and employers—particularly those outside of the healthcare industry—may find compliance to be a challenge.”
“May find compliance a challenge.” Nice lawyerly words.
Yet HB 5074, the Democratic version, is still titled “Immunity from civil claims related to the transmission of or exposure to the COVID-19 virus; emergency.”
The title constitutes false advertising.
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