Oklahoma passed three laws designed to limit liability for businesses during the pandemic. They address specific acts. The first will address a business’s liability for exposing a person to COVID-19. The second concerns the use of products believed to protect people from COVID-19 exposure. The third deals with health care providers.

General Immunity from Liability

In essence, this law provides that a person or business shall not be liable in a civil lawsuit for exposure or possible exposure to COVID-19 if the person or business was acting in compliance with or consistent with “federal or state regulations, a Presidential or Gubernatorial Executive Order, or guidance applicable at the time of the alleged exposure.” This is very good news for responsible businesses. Basically, this means that if businesses are acting in accordance with the current guidance, they will not be liable in a civil lawsuit if, for example, a patron contracts COVID-19.

The takeaway of course is that the business must continually keep up with the guidance. As we see, the science continually changes, and so do the recommendations. We have had to, and will likely continue to need to, adapt. But, if you do so, Oklahoma law will protect you from civil liability.

Note: This law does not address claims for worker’s compensation benefits.

COVID-19 Product Protection Act

This law applies to “a government entity, health care facility, health care provider, first responder, or any business, or the employer or agent of such business” that uses a “qualified product” (certain disinfecting and cleaning supplies, personal protective equipment, etc.) in the proper manner. If using or distributing the covered qualified product in the correct manner, the entity or person shall not be liable for any harm caused by the product.

There is an exception to this law. No immunity from liability will exist if the entity or person: (1) “had actual knowledge that the product was defective when put to the use for which the product was manufactured, sold, distributed, or donated, and … acted with deliberate indifference to or conscious disregard of a substantial and unnecessary risk that the product would cause serious injury to others;” or (2) “acted with a deliberate intention to cause harm.”

COVID-19 Public Health Emergency Limited Liability Act

This law is the most limited in scope. It provides a limitation of liability for “health care facilities” and for “health care providers” arising out of harm to a person with a suspected or confirmed COVID-19 diagnosis if the alleged wrongful act or omission “occurred in the course of arranging for or providing COVID-19 health care services for the treatment of the person.” If you believe you may qualify for this, you would first need to determine whether you fit within the definition of either a “health care facility” or “health care provider.”

If so, this law could provide immunity from “civil liability for any loss or harm to a person with a suspected or confirmed diagnosis of COVID-19 caused by an act or omission by the facility or provider that occurs during the COVID-19 public health emergency, if: (1) the act or omission occurred in the course of arranging for or providing COVID-19 health care services for the treatment of the person who was impacted by the decisions, activities or staffing of, or the availability or capacity of space or equipment by, the health care facility or provider in response to or as a result of the COVID-19 public health emergency; and (2) the act or omission was not the result of gross negligence or willful or wanton misconduct of the health care facility or health care provider rendering the health care services.”

Changes continue in both the science and the law as we all face the challenges brought on by COVID-19. We will continue to provide you with information to help you meet those challenges.

By Kristen L. Brightmire, kbrightmire@dsda.com