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The “South Carolina COVID-19 Liability Immunity Act” (Senate Bill 147) is expected to reach Governor Henry McMaster’s desk early this week for his signature. Senate sponsors initially introduced the act on December 9, 2020, and it received final approval in the House of Representatives on April 23, 2021. Similar to its previously introduced predecessors, House Bill 5527 and Senate Bill 1259, the act provides liability protections against coronavirus-based claims for a limited time period for businesses that follow public health guidance in response to the coronavirus public health emergency.

Specifically, the act protects a broad class of “covered entities” and “covered individuals” from “coronavirus claims,” which include “any claim or cause of action arising from”:

(a) an actual, alleged, or feared exposure to or contraction of coronavirus:

         (i) from the premises of a covered entity;

(ii) from the operations, products, or services provided on‑premises or off-premises for a covered entity; or

(iii) from the acts or omissions of a covered individual or covered entity, to include the delay or withholding of medical care for the treatment or diagnosis of the coronavirus;

(b)(i) the prescribing or dispensing of medicines for off-label use to attempt to combat the coronavirus;

(ii) the providing of health care services related to the coronavirus that are outside of a provider’s professional scope of practice; or

(iii) the utilizing of equipment or supplies to combat or treat the coronavirus in a manner outside of the equipment or supplies’ normal use in medical practice or in the provision of health care services; or

(c) the manufacturing or donating of precautionary equipment or supplies, including personal protective equipment, due to shortages that occurred during the coronavirus pandemic.

To receive immunity under the act, a covered entity or covered individual must “reasonably adhere[] to public health guidance applicable at the time the conduct giving rise to a coronavirus claim occurs.” The act defines “public health guidance” as “any applicable published guidance, directive, order, or rule provided by the South Carolina Occupational Safety and Health Administration, the South Carolina Department of Health and Environmental Control, or another state governmental entity, and federal guidance if referenced by state entities, that is applicable to the type of covered entity or covered individual at issue and to the coronavirus claim at issue.”

The immunity defense does not apply to claims arising under Section 3(1)(b), “if a claimant proves by a preponderance of the evidence that the covered entity or covered individual caused the injury or damage by: (a) grossly negligent, reckless, willful, or intentional misconduct; or (b) a failure to make any attempt to adhere to public health guidance.” For all other claims, the immunity will not apply “if the claimant proves by clear and convincing evidence that the covered entity or covered individual caused the injury or damage by: (a) grossly negligent, reckless, willful, or intentional misconduct; or (b) a failure to make any attempt to adhere to public health guidance.”

A majority of states have pending legislation or already have implemented temporary liability protections for employers.  While these laws vary from state to state, the common theme is to protect employers and businesses from tort liability if they comply with applicable safety guidance.

Upon the governor’s approval, the act’s provisions would “apply to all civil and administrative causes of action that arise between March 13, 2020, and June 30, 2021, or [180] days after the final state of emergency is lifted for COVID-19 in [South Carolina], whichever is later, and that are based upon facts occurring during this time period.”

In anticipation of the passage of the act, employers may want to keep current on and follow all applicable public health guidance for safe operation during the COVID-19 pandemic. A documented record of following official recommended practices may help employers affirmatively demonstrate compliance with public health guidance and help defend against allegations of heightened negligence.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

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