The West Virginia House of Delegates is set to vote Wednesday on a bill that provides protection for health care and business entities from certain COVID-19 lawsuits.
The House advanced Senate Bill 277 Tuesday after making changes that would provide options for people filing Workers’ Compensation claims and people who are injured when an entity acts with malice.
If the House approves the adjusted bill, it will go back to the Senate to see if that chamber agrees with the changes delegates made.
SB 277 has been lauded by supporters as being pro-business and pro-health care provider by preventing a flood of COVID-19 lawsuits, particularly by people who have suffered health issues after contracting COVID-19 at a business or health care facility.
Opponents of the bill said that, while it does provide good protection for people acting in good faith who might make mistakes, it provides too much protection for entities that act recklessly or without the best interests of employees, patients and customers in mind.
If SB 277 becomes law, anyone who suffers loss, damage, physical injury or death after contracting COVID-19 when they seek medical care for issues unrelated to COVID-19 won’t have a legal recourse — even if there is evidence that a health care employee or facility acted recklessly.
Likewise, if a person suffers any of those things after contracting COVID-19 at a business or as a result of using personal protective equipment or other items related to preventing the spread of COVID-19, that person could not seek damages against a business, manufacturer or person who made, sold or distributed the equipment.
The law allows for employees at health care facilities and essential businesses to file Workers’ Compensation claims if they contract COVID-19 at work and suffer damages, but they would not be allowed to file a lawsuit against their employer.
On Tuesday, the House adopted two amendments to the bill.
The first amendment, proposed by Delegate Mick Bates, D-Raleigh, made it so employees whose Workers’ Compensation claims are denied will be able to file claims in circuit court if they experience any injuries, death or other long-term conditions as a result of contracting COVID-19 on the job.
“I think that those that are in the business of employing West Virginians and those that work in West Virginia want that protection for themselves,” Bates said.
The House adopted an amendment proposed by Judiciary Chairman Moore Capito, R-Kanawha, that would allow COVID-19 claims against people and entities that acted with malice, meaning they intended to cause harm with their actions.
The amendment was similar to one proposed by Delegate Chad Lovejoy, D-Cabell, the ranking Democrat on the House Judiciary Committee. The committee rejected Lovejoy’s amendment on Feb. 23.
Lovejoy on Tuesday attempted to add language that wouldn’t protect people and entities who act recklessly, meaning someone doesn’t intend to cause harm but doesn’t give any regard to the damage or injury they might cause by taking certain action. Lovejoy gave the example of a hospital failing to provide personal protective gear to employees because it’s too expensive, and those employees contracting COVID-19 or spreading it to patients.
“I’m trying to point out that conduct has been sanctioned as so bad that we’re going to punish folks for it,” Lovejoy said. “Yet in this bill, without my amendment, we’re immunizing it. I think that’s the wrong way to go.”
The House also rejected Lovejoy’s amendment.
“I think the language put before you today creates opportunities for numerous lawsuits in the state of West Virginia, the antithesis of the purpose of this bill,” Capito said, speaking against Lovejoy’s amendment.
Capito’s amendment also included language to clarify when a lawsuit may be brought when someone’s health care or treatment is negatively affected by COVID-19, causing them illness, injury, or death. The legislation prohibits anyone from filing a lawsuit when care or treatment is affected by COVID-19, and Capito’s amendment clarified that nothing in the measure prevents people from filing lawsuits under existing law when their care and treatment is affected by circumstances other than COVID-19.
SB 277, the “COVID-19 Jobs Protection Act,” was requested by Gov. Jim Justice. It is set to be on third reading Wednesday in the House.