“Will I be liable for that?” is a common question we hear in the legal world. COVID-19 has made that question even more commonplace, especially as more businesses reopen or expand services and more people reengage in public activities. About a dozen states have acted on the liability concern and passed COVID-19 liability protections, and Congress is also deliberating whether federal legislation is necessary. Here in Ohio, the House and the Senate have been reviewing separate immunity proposals. Yesterday, Ohio’s House passed its bill, which aims to limit liability in certain situations where a person claims harm from the transmission of COVID-19.
The language of House Bill 606 effectively explains the House’s intent in putting forth its proposal, stating that:
- The Ohio General Assembly is aware that lawsuits related to the COVID-19 health emergency numbering in the thousands are being filed across the country.
- Ohio business owners, small and large, as they begin to re-open their businesses are unsure about what tort liability they may face, and recommendations regarding how best to avoid infection with COVID-19 change frequently.
- Businesses and premises owners have not historically been required to keep members of the public from being exposed to airborne viruses, bacteria, and germs.
- Those individuals who decide to go out into public places are responsible to take those steps they feel are necessary to avoid exposure to COVID-19, such as social distancing and wearing masks.
The House bill declares that for the above reasons, any COVID-19 “orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency, do not create any new legal duties for purposes of tort liability.”
The bill’s reference to not establishing a legal duty in regards to COVID-19 is important, as it forms the basis of immunity from liability for COVID-19 infections. Under Ohio law, a person who can prove that harm resulted because another failed to meet a required duty of care can make a successful claim of negligence and receive damages for harm caused. Negating a legal duty of care for handling of COVID-19 removes the possibility of civil liability.
The House bill clearly lays out its general liability protection in Section 4 and extends the immunity from March 9 to December 31, 2020 to “any person,” which includes an individual, corporation, business trust, estate, trust, partnership, association, school, for-profit, nonprofit, governmental, or religious entity, and state institution of higher education. But it also makes an exception from immunity where a person has acted recklessly, intentionally, or with wanton misconduct:
- No civil action for damages for injury, death, or loss to person or property shall be brought against any person if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of [COVID-19] or any mutation thereof, unless it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless or intentional conduct or with willful or wanton misconduct on the part of the person against whom the action is brought.
Opponents to the bill claim that it would encourage persons not to take any COVID-19 precautions, but proponents argue that the bill does so by discouraging reckless behavior. Under the legislation, to behave recklessly means that “with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause an exposure to, or a transmission or contraction of [COVID-19] or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations.”
In addition to the general immunity protection explained above, the House bill also provides temporary civil immunity for health care providers, grants immunity to the State for care of persons in its custody or if an officer or employee becomes infected with COVID-19 in the performance or nonperformance of governmental functions and public duties, and expands the definition of “governmental functions” for purposes of political subdivision immunity to include actions taken during the COVID-19 pandemic.
The Ohio Senate is working on its own version of a COVID-19 immunity bill. A fourth hearing on Senate Bill 308 took place on May 27 before the Senate Judiciary Committee. Several substitute bills have replaced the original bill, and it's yet uncertain what the final version will contain.
We've been anxiously waiting for details on additional financial support to farmers through the Coronavirus Food Assistance Program (CFAP). Those details finally arrived yesterday, when the USDA announced its Final Rule for CFAP's Direct Support to Farmers and Ranchers Program, which will allocate $16 billion in funding from the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Commodity Credit Corporation.
The Farm Office team has digested the Final Rule and written an explanation in our latest news bulletin here: Sign up for USDA-CFAP Direct Support to Begin May 26, 2020. The news bulletin provides details on:
- Eligibility requirements for producers
- Eligible commodities
- Payment limitations
- Application and timeline
- Payment calculations, including examples of how to calculate payments
The Farm Office team will also host a webinar about Ohio's CFAP sign up process soon. Be sure to check back with this blog and our Farm Office Live page for further information about the webinar.
The Final Rule and additional information on CFAP are available on USDA's CFAP website.
Farmers aren’t traditionally eligible for unemployment benefits, but that won’t be the case when Ohio’s newest unemployment program opens. We've been keeping an eye out for the opening of the Pandemic Unemployment Assistance (PUA) program, which will provide unemployment benefits to persons affected by COVID-19. The program is targeted to persons who are not eligible for regular unemployment benefits, such as self-employed and 1099 filers. PUA is yet another economic assistance program generated by the Coronavirus Aid, Relief and Economic Security (CARES) Act recently passed by Congress.
PUA will provide regular unemployment benefit amounts to qualifying individuals, plus an additional $600 per week for the period of March 29 to July 25, 2020. Qualification doesn’t include a minimum income requirement, but a person must not be eligible for Ohio’s regular unemployment benefits and must not be currently receiving vacation, sick or other paid leave. The applicant must also be unable to work due to one of the following situations:
- The applicant has been diagnosed with COVID-19 or has symptoms and is seeking medical diagnosis;
- A member of the applicant’s household has been diagnosed with COVID-19;
- The applicant is providing care for a family or household member who has been diagnosed with COVID-19;
- The applicant cannot work due to caring for a child whose school or other facility has closed due to COVID-19;
- The applicant has become the primary support for a household because the head of the household has died due to COVID-19;
- The applicant has quit his or her job, was laid off, or could not begin a new job as a direct result of COVID-19;
- The applicant’s place of employment is closed because of COVID-19.
Applications should open by mid-May on the Ohio Department of Job and Family Services website. Self-employed individuals will have to submit proof of employment, such as earnings statements that reflect profit and loss, payroll deposits, or a 2019 tax return. The unemployment benefits will be retroactive to the date of eligibility and will last for no more than 39 weeks, up to December 26, 2020. PUA may also provide an additional 13 weeks of benefits for those who’ve exhausted regular unemployment benefits. To learn more or apply for PUA, visit https://unemploymenthelp.ohio.gov/expandedeligibility/.
It’s been a quiet few weeks here at the Farm Office as we adjust to life with Coronavirus-19, but it’s time to get back to the Ohio Ag Law Blog. We hope our readers are safe and healthy.
We’ve received several questions about Ohio’s Stay at Home Order and how it affects agricultural businesses. As you well know, the Order states that residents are to stay at home and may leave “only for Essential Activities, Essential Governmental Functions, or to participate in Essential Businesses and Operations.” All non-essential businesses and activities are to cease. It became effective early Tuesday morning and remains in place until the end of the day on April 6. Here are the relevant parts of the Order that answer the questions we’ve received:
What businesses are “essential”?
The Order lists (on pages 5 and 6) the “Essential Businesses and Operations” that may continue during this period. The list specifically includes many agricultural activities, such as:
12 b. Stores that sell groceries and medicine. Grocery stores, pharmacies, certified farmers' markets, farm and produce stands, supermarkets, convenience stores, and other establishments engaged in the retail sale of groceries, canned food, dry goods, frozen foods, fresh fruits and vegetables, pet supplies, fresh meats, fish, and poultry, prepared food, alcoholic and non-alcoholic beverages, any other household consumer products (such as cleaning and personal care products), and specifically includes their supply chain and administrative supp0rt operations. This includes stores that sell groceries, medicine, including medication not requiring a medical prescription, and also that sell other non-groce1y products, and products necessary to maintaining the safety, sanitation, and essential operation of residences and Essential Businesses and Operations;
c. Food, beverage, and licensed marijuana production and agriculture. Food and beverage manufacturing, production, processing, and cultivation, including farming, livestock, fishing, baking, and other production agriculture, including cultivation, marketing, production, and distribution of animals and goods for consumption; licensed medical marijuana use, medical marijuana dispensaries and licensed medical marijuana cultivation centers; and businesses that provide food, shelter, and other necessities of life for animals, including animal shelters, rescues, shelters, kennels, and adoption facilities;
h. Gas stations and businesses needed for transportation. Gas stations and auto supply, auto-repair, farm equipment, construction equipment, boat repair, and related facilities and bicycle shops and related facilities;
o. Restaurants for consumption off-premises. Restaurants and other facilities that prepare and serve food, but only for consumption off-premises, through such means as in-house delive1y, third-party delivery, drive-through, curbside pick-up, and carry-out…. This Order is consistent with and does not amend or supersede prior Orders regarding the closure of restaurants.
The list also includes many businesses that service and supply agricultural businesses, such as hardware and supply stores, shipping and delivery services, and financial and professional services.
Can employees travel to and for an “essential business”?
Yes. The Order allows (on page 2) residents to leave their homes to perform work at Essential Businesses or Operations. The Order also allows (on page 7) for “Essential Travel,” which includes “any travel related to the provision of or access to” Essential Businesses and Operations.
Do employeess need documentation about why they are out traveling?
No. Also note that in the Frequently Asked Questions about the Order, the State responded as follows to the question, "I work in an essential service. How will the police know I'm allowed to be outside my house?""
"Law enforcement officials will not stop residents who are on their way to or from work or who are out for necessities like going to the pharmacy or getting groceries, or just taking a walk. People gathering in any size group may be asked to physically distance themselves or go home. Ohioans should abstain from all nonessential activities. Adhering to the order will save lives and it is the responsibility of every Ohioan to do their part. We are in this together. "
What precautions should I take for employees and others at my “essential business”?
First, the Order lays out (on page 8) several required measures that Essential Businesses must follow:
15 a. Required measures. Essential Businesses and Operations and businesses engaged in Minimum Basic Operations must take proactive measures to ensure compliance with Social Distancing Requirements, including where possible:
Designate six-foot distances. Designating with signage, tape, or by other means six-foot spacing for employees and customers in line to maintain appropriate distance;
Hand sanitizer and sanitizing products. Having hand sanitizer and sanitizing products readily available for employees and customers;
Separate operating hours for vulnerable populations. Implementing separate operating hours for elderly and vulnerable customers; and
Online and remote access. Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely.
Second, the Order also includes (on pages 8 and 9) a COVID-19 Information and Checklist for Businesses/Employers that requires businesses and employers to take the following actions. We encourage employers to read these provisions carefully:
- Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
- Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a healthcare provider's note to validate the illness or return to work of employees sick with acute respiratory illness; healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).
- Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovere
- Reinforce key messages stay home when sick, use cough and sneeze etiquette, and practice hand hygiene to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
- Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
- Be prepared to change business practices if needed to maintain critical operations (e., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).
What is “social distancing,” exactly?
There’s been a lot of talk about social distancing. The Order requires residents to practice social distancing when outside of their residences and defines (on page 15), exactly what it means:
15. Social Distancing Requirements. For purposes of this Order, Social Distancing Requirements includes maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.
Who’s enforcing the Order?
The Order also addresses enforcement (on page 8), stating that:
17. Enforcement. This Order may be enforced by State and local law enforcement to the extent set forth in Ohio law. To the extent any public official enforcing this Order has questions regarding what services are prohibited under this Order, the Director of Health hereby delegates to local health departments the authority to answer questions in writing and consistent with this Order.
Note, however, that Governor DeWine (on Twitter) has encouraged businesses not to overwhelm law enforcement or local health departments with questions and advice on what’s “essential,” but instead to “use your own good judgment of that order to make your own determination if you are essential.”
Are there recordkeeping requirements?
No. But we attorneys always advise agricultural operators to keep good records. Governor DeWine agrees, as he has stated (on Twitter) that businesses should “create a document about why you believe you are an essential business and how you are providing a safe workplace.” If there is a question in the future about what you did or did not do during this important period, be sure that you have documentation to back it up. As always, documentation includes not only written information but also photographs and videos.
We encourage readers to carefully review the Stay at Home Order, which is available here on Ohio’s coronavirus.ohio.gov website. OSU also has a site with COVID-19 resources, available here on https://u.osu.edu/2019farmassistance/covid-19/