Since the COVID-19 outbreak began, many states have acted to protect their health care workers and facilities by providing them with civil, and, in some instances, criminal, immunity in connection with their fight against COVID-19. Those states include Pennsylvania, New York and New Jersey.* How they have implemented the protection and the reach of the protection varies.
Immunity for Pennsylvania health care providers comes from an executive order signed by Governor Wolf on May 6, 2020. It took effect on the day it was signed and will remain in effect as long as Pennsylvania is under the disaster emergency declared by Governor Wolf. The order grants immunity to “any individual who holds a license, certificate, registration or certification or is otherwise authorized to practice a health care profession or occupation in [Pennsylvania], and who is engaged in emergency services activities or the provision of disaster services activities related to the Commonwealth’s COVID-19 disaster emergency response. . . .” A covered provider can work at a health care facility, a nursing facility, a personal care home, an assisted living facility, an alternate care site, a community-based testing site or a noncongregate care site used for conducting emergency or disaster services related to the COVID-19 response. Civil immunity is granted as long as a covered person’s acts or omissions in connection with his or her activities related to the above do not constitute willful misconduct or gross negligence.
Unlike other states, including neighboring states New York and New Jersey, Pennsylvania does not provide immunity to facilities, including health systems, hospitals, nursing homes, personal care homes or outpatient facilities.
Immunity in New Jersey is provided by legislation that was signed into law by Governor Murphy on April 14, 2020. Immunity is retroactive to March 9, 2020, the date when Governor Murphy declared a state of emergency in connection with the COVID-19 pandemic. It will continue as long as New Jersey remains in a state of emergency as declared by the governor. The law provides civil immunity to health care professionals and facilities that provide COVID-19-related medical services. The legislation provides that a health care professional cannot be held liable for civil damages for injury or death allegedly caused by an act or omission by said person in the course of providing medical services in connection with the COVID-19 response.
Related immunity is provided to health care facilities. The law protects “any act or omission undertaken in good faith” by health care professionals, facilities or systems for COVID-19-related treatment, including “diagnosing or treating patients outside the normal scope of health care professional’s license or practice.” It also protects providers and facilities from both civil and criminal liability related to resource allocation, such as the allocation of ventilators, as long as a critical resource allocation policy has been adopted and is followed.
The immunity does not apply to “acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness or willful misconduct.”
Immunity in New York, like in New Jersey, is provided by legislation. New York passed the Emergency Disaster Treatment Protection Act on April 3, 2020. It is effective retroactive to March 7, 2020, the date that Governor Cuomo declared a state of emergency in connection with the COVID-19 pandemic, and will remain in effect until the expiration of the declared state of emergency.
Like in New Jersey, the Act provides immunity to individual health care providers, including, but not limited to, doctors, nurses, home health workers and EMTs and to health care facilities, including, but not limited to, hospitals and nursing homes. It also provides immunity to administrators. It does not provide protection against claims for willful or intentional criminal misconduct, gross negligence, reckless misconduct and/or intentional infliction of harm. It also protects against liability related to resource allocation by providing that acts, omissions or decisions stemming from staffing shortages or lack of resources do not fall into the category of willful or intentional criminal misconduct, gross negligence, reckless misconduct and/or intentional infliction of harm.
*Other states that have provided varying levels of immunity to health care workers and, in some states, health care facilities, either through executive order, legislation or both include: Alabama, Arizona, Arkansas, Georgia, Iowa, Kansas, Mississippi, Nevada, Oklahoma, Rhode Island, Virginia, Vermont, Kentucky, Utah, Wisconsin, Michigan, North Carolina, Massachusetts, Illinois and Connecticut. Indiana, Louisiana, Maryland and Montana have statutes that immunize providers immediately upon the declaration of a public health emergency and do not require specific executive orders or legislation in order for providers to receive immunity.