Arkansas businesses and healthcare workers will be immune from civil liability as a result of COVID-19 exposure during the public health emergency.
Gov. Asa Hutchinson signed a tranche of three executive orders on Monday, June 15 focusing on civil liability and worker’s compensation during the COVID-19 pandemic. Two of the executive orders address business liability and medical immunity, and the third executive order addresses worker’s compensation.
Under the business liability executive order, businesses and their employees will be immune from civil liability stemming from COVID-19 exposure. However, this immunity is limited. It does not apply to “willful, reckless or intentional misconduct,” according to Hutchinson, but there is a presumption that businesses are not reckless is they “substantially” comply with public health directives and guidelines. This immunity also does not apply to worker compensation benefits.
The workers’ compensation executive order assures coverage for employees who contract the virus in the workplace. COVID-19 will be considered an “occupational disease” and will be an exception to the “prohibition on compensation for ordinary diseases of life.” However, a causal connection must be established between an individual’s employment and the virus.
Healthcare workers and providers are also receiving immunity via executive order. The healthcare community will be authorized to “use crisis standards of care to respond to treat COVID-19 patients,” and as emergency workers, will be immune from civil liability except in cases of “willful, reckless or intentional misconduct.”
Both the immunities and the worker’s compensation executive order will extend through the public health emergency.
“I think it’s a good day for the businesses of Arkansas. It’s also a good day for the employees,” Arkansas Senate Pro Tempore Jim Hendren said. “Anybody who gets COVID-19 at work deserves to have those healthcare costs and those associated time off paid for, and the workman’s comp executive order will make sure that that is the case because in the current law, that is not the case. So, I think it’s a good thing for the workers, for the businesses and for Arkansas.”
According to Hutchinson, he had received letters from representatives and senators requesting a remedy for business liability during the COVID-19. Hutchinson reportedly sought to avoid a special session and the executive orders were developed as a solution.
“I have worked with the Speaker Matthew Shepherd who’s with us today as well as the Senate Pro Tem Jim Hendren, and they have supported the idea of an executive order that during the pandemic that would solve the challenge of the immunity liability,” Hutchinson said.
Both Arkansas House of Representatives Matthew Shepherd and Hendren agreed with Hutchinson, saying that there has been an increasing call for liability protections from business owners. As a result, legislators developed potential bills that were circulated, and they worked to fine-tune the language of the proposals.
“As the governor alluded to, over course of the last month or so, there’s been a growing discussion about should there be certain liability protections, specifically immunity provided to certain aspects to the business and healthcare community, as well as to try and address maybe some of the issues that could arise with regards to worker’s compensation,” Shepherd said.
“Businesses needed some protection as they opened up in this environment. So many of them had been so battered by the loss of customer base, by mandatory shutdowns, and now the thought that they were going to open up, try to get back on their feet and be hit with a lawsuit was just something that was a real concern to so many that the senate felt like it was important that we take action as several other states have done and continue to do,” Hendren said.
Immunity, according to Hendren, is not a blanket defense for businesses. Based on the language of the executive orders, businesses must adhere to the public health executive orders in order to qualify for the protections. “You don’t get the immunity if you’re a bad actor,” he said.
Legislators and state officials reportedly worked to get the orders out as quickly as possible. The immunity provided by the executive orders will not be retroactive to the beginning of the pandemic. The orders take effect June 15 and remain in effect until the end of the public health emergency, which was recently extended.
Shepherd said that legislators could potentially address immunity and worker’s compensation issues at a later date but he called the three orders an “adequate remedy” for the current time.
“There’s always the opportunity in the future to further address any of the issues that have been raised as well as others. For the time being, we feel like this is an adequate remedy to address many of the concerns and to send the message to our businesses and our employees that we appreciate them getting back to business, providing the necessary services to our citizens and if they are making the right effort, if they’re following those guidelines that are out there, the fear of litigation should be minimized,” Shepherd said.
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