The South Carolina state Senate passed legislation that would provide immunity from COVID-19-related lawsuits to companies that follow state and federal health guidelines.
The measure now goes to the South Carolina House of Representatives for a similar vote and, if passed, could be sanctioned by Governor Henry McMaster.
The approval of the bill, S. 147, called “South Carolina’s COVID-19 Liability Immunity Act”, was a priority for companies and lawmakers like national trends continue to show a steady increase in lawsuits related to COVID-19 against companies and employers. Several other states have already adopted similar measures. (For example, see our article, Wisconsin Passes COVID-19 Disclaimer to Employers.)
Key Provisions
According to S. 147, covered entities (broadly defined to include for-profit and non-profit companies, government agencies and health facilities) need only show reasonable adherence to public health guidelines to receive immunity from liability for acts or omissions related to COVID-19 claims.
The bill does not define what constitutes “reasonable adherence”. However, during the initial drafting of the bill, state legislators debated whether to include “reasonable” to give flexibility to employers’ obligations, given the different sources of public health guidance. An almost identical bill submitted to the South Carolina House of Representatives in 2020, H. 5527, defined the public health policy as including both the state and federal public health policy. However, S. 147 specifies that public health guidelines refer to guidelines provided by state agencies in South Carolina and include federal guidelines only insofar as such guidelines are referenced by state agencies.
According to the proposed legislation, any claim arising from actual or alleged exposure to COVID-19 of a company’s facilities or the operations, products or services provided by a company would be barred by immunity, unless the claimant can clearly demonstrate and evidence convincing that the company: (1) engaged in conduct that was grossly negligent, reckless, intentional or intentional; or (2) made no attempt to adhere to public health guidelines. A milder burden of proof applies to certain claims that arise in the context of medical malpractice.
If converted into law, the law would apply retroactively to protect companies from complaints arising between March 13, 2020 and June 30, 2021 or 180 days after the final state of emergency is lifted in South Carolina, whichever occurs later. Based on its wording, the law is arguably broad enough to cover labor claims under state law, such as complaints processes arising from workplace safety complaints and improper termination processes, although such claims are not specifically referenced.
Effect of Workers Compensation and Exclusivity Provision
S. 147 also states that its provisions do not exclude or limit the availability of proposed actions under the South Carolina Workers’ Compensation Act. In 2020, legislators in the South Carolina House of Representatives introduced a measure, H. 5482, to amend the state Workers’ Compensation Act to make it easier for certain key employees, such as first responders, health care providers and correctional officers, to immediately receive temporary employees Total disability benefits if the employee hires COVID-19 at work.