By: Barry K. Jones
During the 2020 Regular Session, the Mississippi Legislature passed the Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act which was signed into law on July 8, 2020 with an effective date of March 14, 2020. The Act is of particular interest to businesses, health care providers, and manufacturers in providing immunity against suits alleging exposure to COVID-19.
Immunity is provided from suit for civil damages for any injuries or death resulting from or related to actual or alleged exposure or potential exposure to COVID-19 to individuals, state or political subdivisions, associations, educational entities, for-profit or nonprofit entities, or religious organizations if, in the course of or through the performance or provision of functions or services, they attempted in good faith to follow applicable public health guidance unless no guidance was in place at the time.
Immunity is also provided to an owner, lessee, occupant or other person in control of a premises, that attempted in good faith to follow applicable public health guidance and directly or indirectly invited or permitted any person onto the premises.
The immunity grant is not automatic since one claiming immunity must establish that they attempted in good faith to follow applicable public heath guidance. It is imperative that those granted immunity under the Act stay apprised of applicable public health guidance for their particular industry. This means reviewing and complying with written guidance issued by federal executive and regulatory agencies and Mississippi executive agencies. The Act does not provide guidance as to how to establish good faith. Suggestions for establishing good faith include obtaining an attorney opinion letter confirming proposed policies comply with applicable public health guidance, obtaining written liability waivers, documenting efforts to comply with state and local government public health guidance and training employees accordingly.
Health care professionals and health care facilities receive the broadest immunity under the Act. The immunity for health care professionals and health care facilities applies to any injury or death directly or indirectly sustained because of acts or omissions while providing health care services related to a COVID-19 state of emergency. Immunity for health care providers starts the day a COVID-19 state of emergency is (or was) declared and extends for a year after it ends. It applies to any health care services performed during the COVID-19 state of emergency. It also includes specific acts, without precluding other acts and omissions, taken in response to COVID-19, like prescribing medication outside its normal use, delaying or canceling nonurgent or elective procedures, treating patients outside of the provider’s normal specialty, and using modified medical devices for an unapproved use. The Act states that immunity for health care professionals and health care providers should be applied by courts liberally.
Manufacturers, designers, labeler, sellers, distributors, or donors of certain products receive immunity from suit for any injuries resulting from or related to actual or alleged exposure or potential exposure to COVID-19 caused by a product if the product is either a qualified product (defined as PPE; medical devices, equipment, or supplies, including products modified for an unapproved use or products utilized outside of its normal use; medications, including those prescribed or dispensed for off-label us; tests to diagnose or determine immunity to COVID-19 approved by or submitted for approval by FDA; or components of any of the forgoing products and used to prevent the spread of, protect a person from, or treat COVID-19); or made, sold, or donated outside of the ordinary course of business in response to COVID-19; and is either disinfecting or cleaning supplies, or personal protective equipment (defined as coveralls, face shields, gloves, gowns, masks, respirators or other equipment designed to protect the wearer from the spread of infection or illness).
It should be noted that the language of the Act limits personal protective equipment to products intended to protect the wearer from the spread of infection or illness. Recent CDC guidance provides that face masks do not protect the wearer from catching COVID-19, but rather help prevent the wearer from spreading the virus to others. If you are selling PPE in Mississippi, you may be advisable to include warnings that track the language of current public health guidance.
The Act provides an exception to immunity if a plaintiff shows by clear and convincing evidence, that a defendant, or any employee or agent, acted with actual malice or willful, intentional misconduct. The Act provides a two-year statute of limitations for causes of action based on any alleged injury arising from COVID-19. As a result, certain claims may be subject to a new two-year statute of limitations, as opposed to Mississippi’s general three-year statute of limitations.
The Act is unclear as to whether immunity for injuries includes both physical and economic injuries. The Act could be construed to include immunity for liability traditionally incurred by tort, contract, or otherwise. Because of the breadth of the Act, businesses concerned with potential disputes, whether tort or contract, arising during the COVID-19 pandemic should obtain the advice of counsel to determine whether and to what extent preemptive actions can be taken to come within the Act’s immunity.