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For many people, 2020 was a bit of a blur with a combination dumpster fire and nightmare. CEOs, CFOs, HR, and attorneys were all learning law on the fly as proclamations, suggestions, guidance, and eventually bills and statutes bombarded us at every turn. Something that we thought was law at 9:00 a.m. might have changed dramatically by noon and it was always a process of attempting to keep ahead of the curve. As the current Iowa legislature is in session and evaluating a wide array of bills, some of which relate to the COVID-19 pandemic, it is important to understand what legislation passed in Iowa in 2020 to address COVID issues.

Nationally, there have been a wide array of cases relating to COVID ranging from price gouging, suits on snake oil cures for illness, failure to refund training such as fees for closed gyms, as well as contract cases relating to the issue of impossibility of performance, not to mention OSHA, resident rights for long-term care and other healthcare and employment cases focusing primarily on the ADA/ADAAA and FMLA. There has also been an enormous uptick in privacy cases as the amount of malware, phishing schemes, and general ransomware concerns grew daily during the pandemic.

2020 Legislation - COVID-19 Response and Back to Business Limited Liability Act

The COVID-19 Response and Back to Business Limited Liability Act, signed into law on June 18, 2020, gives us Iowa Code 686D 1-8, in addition to amending a few other statutes. Although the act tries to address the most pressing business issues, it still leaves some gray areas which we can assume will be the focus of future litigation.

Limits on Civil Action

686D.3 indicates that a person may not bring a civil action alleging exposure or potential exposure to COVID-19 unless one of these specific issues have occurred:

1. there is a minimum medical condition
2. there was the intent to cause harm, or
3. there was actual malice in the COVID exposure

Numbers 2 and 3 are meant to take into account the “bad actor” issues and to make sure that no one thinks they are immune if they intentionally set out to give somebody else COVID-19. Therefore, the question becomes: what is a minimum medical condition and what does that mean? Minimum medical condition is defined in 686D.2(7) and states specifically that it is “a diagnosis of COVID-19 that requires in-patient hospitalization or results in death.” In other words, this would appear to indicate that if there was significant damage resulting from potential COVID exposure i.e. hospitalization or death, then the limitation on bringing an action would not apply.

Premises Liability

Of significant concern for many people during the pandemic and going forward, which can even be seen in advertising campaigns for COVID “safety certified” buildings, is the issue of premises liability and the duty of care. This is addressed in 686D.4 which states that whether the potential “exposure occurs on the premises or during any activity managed by the person who possesses or is in control of the premises” there is no liability unless any of the following apply:

1. there is reckless disregard of a “substantial and unnecessary risk” of COVID exposure
2. there is actual malice, or
3. there is intentional exposure to COVID-19

Compliance with Guidelines  

Section 686D.5 also provides a safe harbor relating to liability “for any injury sustained from exposure or potential exposure to COVID-19” so long as there was substantial compliance with federal and state statutes, regulations, orders, or similar guidance which was applicable at the time of the alleged exposure. The downside of this section is the difficulty of tracking when certain guidance, requirements, rules, or regulations were set forth as these were changing quite frequently. In at least one instance the CDC issued guidance first thing in the morning and it was gone less than two hours later. You may need to coordinate with your attorneys or others to make sure that you are properly tracking the timeline and guidance which would have been applicable during that timeframe.

Healthcare Provider Liability

In national media and individually in the healthcare field there has been a significant amount of discussion regarding the liability of healthcare providers. Section 686D.6 sets out a safe harbor for healthcare entities who are providing healthcare support or services related to COVID-19. This includes some hot button areas such as “prescribing, administering or dispensing” drugs “off label” to treat suspected COVID-19 patients. Note that the utilization of pharmaceuticals is also federally regulated by both statute and the FDA, so such a safe harbor may not help in a Federal claim.

This section is also meant to take into consideration when PPE was not available or when PPE utilization was nonspecific to limit liability. Interestingly it negates liability for the cancellation of elective procedures or non-emergency healthcare which would be in compliance with various gubernatorial proclamations limiting elective procedures due to concerns about the availability of PPE.

PPE Liability 

686D.7 also provides for a safe harbor for those who manufactured or donated personal protective equipment (PPE) with some limitations particularly if there was actual knowledge of a defect, reckless disregard of a substantial risk, or actual malice.

You can probably sense a theme here - those that seek to do harm do not get the benefit of the statute’s protections. The statute does not impact other areas such as workers’ compensation or limit other forms of safe harbor or immunity which may be contained within the Iowa Code or contracts.

2006 Statute in Focus           

One statute from 2006 which gained attention during the pandemic was Iowa Code 139A. This states that employees isolating, quarantining, or engaging in voluntary confinement at the request or order issued by an agency may not be terminated or otherwise disciplined for complying with that order.

139A does not create a new or separate employment action for money damages, but a person bringing a claim may seek reinstatement or a cease and desist order.

2021 and on the Horizon

There are a variety of federal bills currently under debate regarding funding, relief efforts, and continuing concerns about liability issues. In the Iowa legislature, bills are being considered which relate to funding or certain rules, with a strong emphasis on bills allowing telehealth. There is also an expectation that the legislature will evaluate broader indemnity clauses and safe harbors for various commercial issues relating to business survival through the COVID-19 pandemic.

My colleagues in the Government Relations department publish a weekly update from the Legislature which can be read on the Davis Brown Government Relations Report.