2020 Kansas and Missouri Labor & Employment Law Year-End Review
Wichita, Kan/Kansas City, Mo. (January 12, 2021) - Below is a summary of the most noteworthy judicial decisions and legislative changes related to employment law that took place in Kansas and Missouri in 2020.
Kansas Human Rights Commission (KHRC) Changes
Following the U.S. Supreme Court’s decision in Bostock v. Clayton Cty., 140 S. Ct. 1731, 1734 (2020), the KHRC began accepting complaints of sex discrimination in employment, housing, and public accommodations wherein allegations included discrimination based on LGBTQ and all derivatives of “sex.”
For more information on the decision, please visit the following links provided for by the KHRC:
- Kansas Human Rights Commission Concurs with the U.S. Supreme Court’s Bostock Decision; and
- Guidance from the Kansas Human Rights Commission on Sex Discrimination in Employment, Public Accommodations, and Housing.
On June 4, 2020, the Kansas legislature passed House Bill No. 2016, titled “COVID-19 Response and Reopening for Business Liability Protection Act.” The Act provides the following sections:
Healthcare Provider Immunity (Section 10)
(a) Notwithstanding any other provision of law except as provided in subsection (c), a healthcare provider is immune from civil liability for damages, administrative fines or penalties for acts, omissions, healthcare decisions or the rendering of or the failure to render healthcare services, including services that are altered, delayed or withheld, as a direct response to any state of disaster emergency declared pursuant to K.S.A. 48-924, and amendments thereto, related to the COVID-19 public health emergency.
(b) The provisions of this section shall apply to any claims for damages or liability that arise out of or relate to acts, omissions or healthcare decisions occurring during any state of disaster emergency declared pursuant to K.S.A. 48-924, and amendments thereto, related to the COVID-19 public health emergency.
(c) (1) The provision of this section shall not apply to civil liability when it is established that the act, omission or healthcare decision constituted gross negligence or willful, wanton, or reckless conduct.
(2) The Provisions of this section shall not apply to healthcare services not related to COVID-19 that have been altered, delayed or withheld as a direct response to the COVID-19 public health emergency.
Business Liability (Section 11)
(a) Notwithstanding any other provision of law, a person, or an agent of such person, conducting business in this state shall be immune from liability in a civil action for a COVID-19 claim if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the cause of action when the cause of action accrued.
(b) The provisions of this section shall expire on January 26, 2021.
Products Liability (Section 12)
Notwithstanding any other provision of law, a person who designs, manufactures, labels, sells, distributes, provides or donates a qualified product in response to the COVID-19 public health emergency shall be immune from liability in a civil action alleging a product liability claim arising out of such qualified product if:
(a) The product was manufactured, labeled, sold, distributed, provided or donated at the specific request of or in response to a written order or other directive finding a public need for a qualified product issued by the governor, the adjutant general or the division of emergency management; and
(b) the damages are not occasioned by willful, wanton or reckless disregard of a known, substantial and unnecessary risk that the product would cause serious injury to others.
Adult Care Facilities (Section 13)
(a) Notwithstanding any other provision of law, an adult care facility shall have an affirmative defense to liability in a civil action for damages, administrative fines or penalties for a COVID-19 claim if such facility:
(1) (A) Was caused, by the facility’s compliance with a statute or rule and regulation, to reaccept a resident who had been removed from the facility for treatment of COVID-19; or
(B) treats a resident who has tested positive for COVID-19 in such facility in compliance with a statute or rule and regulation; and (2) is acting pursuant to and in substantial compliance with public health directives.
(b) As used in this section, “public health directives” means any of the following that is required by law to be followed related to public health and COVID-19:
(1) State statutes, rules and regulations or executive orders issued by the governor pursuant to K.S.A. 48-925, and amendments thereto; or
(2) federal statutes or regulations from federal agencies, including the United States centers for disease control and prevention and the occupational safety and health administration of the United States department of labor.
Other Provisions Including Workers’ Compensation (Section 14)
Nothing in the COVID-19 response and reopening for business liability protection act:
(a) Creates, recognizes or ratifies a claim or cause of action of any kind;
(b) eliminates a required element of any claim;
(c) affects workers’ compensation law, including the exclusive application of such law; or
(d) amends, repeals, alters or affects any other immunity or limitation of liability.
Retroactive Application (Section 15)
(a) The provisions of sections 11, 12 and 14, and amendments thereto, shall apply retroactively to any cause of action accruing on or after March 12, 2020.
(b) The provisions of section 10 and 13, and amendments thereto, shall apply retroactively to any cause of action accruing on or after March 12, 2020, and prior to termination of the state of disaster emergency related to the COVID-19 public health emergency declared pursuant to K.S.A. 48-924, and amendments thereto.
Expansion of Whistleblower Law to Allow Punitive Damages
Last year, the Missouri legislature introduced House Bill 21 (HB 21) which would have modified the provisions of the Missouri Whistleblower’s Protection Act (2017) (WPA); however, that Bill failed to pass. HB 21 was almost identical to the previously failed HB 2393, which also sought to modify the WPA. A key difference between HB 21 and HB 2393 was that HB 21 sought to allow punitive damages under the WPA. We anticipate similar legislation to continue in 2021.
On May 5, 2020, the Missouri House of Representatives adopted SB 662/SB 1 providing that any healthcare provider who, in good faith, renders care in connection with the COVID-19 pandemic shall not be liable for any civil damages (unless grossly negligent/willful and wanton) during a period where an executive order declaring a state of emergency is in effect.
Due to the House’s amendments, the Missouri Senate must vote on the bill again before it will be submitted to Governor Parson for consideration and signature into law.
On November 12, 2020, Governor Michael Parson announced a special legislative session to address COVID-19 liability. He called on the General Assembly to enact legislation to provide liability protection for healthcare providers who provide care as necessitated by a declared state of emergency. In response, SB 1 was introduced into the Missouri Senate on November 13. The bill provides that any healthcare provider who provides care as necessitated by an emergency shall not be liable for civil damages or administrative sanctions.
Coverage for COVID-19 Testing
In addition to the COVID-19 updates identified above, Missouri also recognizes the follow legislation pertaining to COVID-19, pursuant to RSMo § 192.895:
- Subject to appropriation, any Missouri resident whose healthcare provider recommends that he or she receive an active COVID-19 test shall receive such test and the results of the test at no cost. The department of health and senior services shall be authorized to utilize available federal funds to pay for the portion of the expense of such test and resulting analysis that is not covered by the resident’s health insurance provider, provided that such expenses do not exceed one hundred fifty dollars per test.
- A health insurance provider shall not reduce a Missouri resident’s health insurance coverage that is related to the testing for severe acute respiratory syndrome coronavirus 2 during a state of emergency declared by the governor. The provisions of this subsection shall not apply to any reduction in health insurance coverage that is a result of nonpayment of premiums.
For more information on the cases and laws discussed herein, contact the authors or editors of this alert, or visit our Labor & Employment Practice page to find an attorney in your area.
Blake M. Edwards, Associate
Loren S. Foy, Partner
Alan L. Rupe, Managing Partner - Kansas City, MO - Wichita, KS
Jade McKenzie, Associate