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COVID-19 Response: Kansas Businesses Provided Broad Immunity From Liability in Response to COVID-19 Claims

Wichita, Kan. (June 22, 2020) - On June 4, 2020, the Kansas legislature passed House Bill No. 2016. This bill creates the COVID-19 Response and Reopening for Business Liability Protection Act (the Act). Under this Act, many Kansas businesses are “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.” See Section 11.

The Act also addresses certain businesses in particular, including healthcare providers and adult care facilities.

Healthcare Provider Immunity (Section 10)

This section states that 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.

This section further states that 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 or disaster emergency declared pursuant to K.S.A. 48-924, and amendments thereto, related to the COVID-19 public health emergency. See Section (a) and (b).

However, the provisions 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. See Section (c)(1).

This section applies 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.

Business Liability (Section 11)

This section states that a person, or an agent of such person, conducting business in Kansas 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.

This section applies retroactively to any cause of action accruing on or after March 12, 2020, and expires on January 26, 2021.

Products Liability (Section 12)

This section states that 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.

This section applies retroactively to any cause of action accruing on or after March 12, 2020.

Adult Care Facilities (Section 13)

This section states that 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 or 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. 49-925, and amendments thereto; or

(2) Federal statutes or regulations from federal agencies, including the United States Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) of the United States Department of Labor.

This section applies 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.

Other Provisions, Including Workers’ Compensation (Section 14)

This section states that 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 effects any other immunity or limitation of liability.

This section applies retroactively to any cause of action accruing on or after March 12, 2020.

More Information and Resources

For more information and resources regarding COVID-19 and Kansas, visit the Kansas Department of Health and Environment’s webpage here, where you can find your county’s specific plan to reopen, business guidelines in response to COVID-19, and operational guidance forms for specific industries including: 

Visit our COVID-19 Response Resource Center for more alerts and information on the many areas of law impacted by the pandemic.

Authors:

Alan L. Rupe, Managing Partner - Kansas City, MO - Wichita, KS

Blake M. Edwards, Associate

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