The Rise of COVID Liability Shield Laws

By: Santiago Uribe

The COVID-19 pandemic has had an indelible impact on our nation.[1] It is clear that “[t]he economic and social disruption caused by the pandemic is devastating: tens of millions of people are at risk of falling into extreme poverty . . .”[2] At the start of the pandemic “140,104 [business] were marked temporarily closed on Yelp.com, but by August that had fallen to 65,769.”[3] At first glance, that statistic seems to give rise to the conclusion that more than half of the business that closed due to the pandemic had reopened by August. “That drop, however, is not entirely driven by businesses reopening; instead, many have simply gone under. More than 97,966 businesses have permanently shut down during the pandemic . . .”[4]

Although it may be pre-mature, some scientists believe that the nation is on the track to normalcy.[5] That glimmer of hope is attributable to improved vaccine availability, which is paving the way for herd immunity.[6] “Now that the vaccine rollout is underway” states are beginning to lift to restrictions on business who survived the pandemic.[7] Nonetheless, the imposition and lifting of COVID restrictions and legislature “remains largely up to state and local official . . .”[8]

A disturbing trend that his arisen in light of the pandemic is the rise of COVID liability shield laws.[9] These laws “protect businesses, universities, health care providers and individuals from claims stemming from the virus.”[10] Lawmakers feel the need to “[p]rovide assurances to businesses that reopening will not expose them to liability for [employees’ and consumers’] exposure to COVID-19.”[11] Frankly, COVID liability shield laws harm the public because businesses will escape liability for failing to maintain safe work environments.

States that have enacted liability shield laws included West Virginia, Indiana, Alabama, and Georgia.[12] The West Virginia statute was passed on March 19, 2021 and will serve as the model statute for the purposes of examining the scope of the liability shield laws.[13] These laws have not been met without resistance.[14] Notably, lawmakers in Pennsylvania “passed similar legislation, but it was vetoed . . . by Gov. Tom Wolf . . .” who stated the bill created a potential safety risk and went too far in shielding businesses from coronavirus-related claims.”[15]

The key provision in West Virginia statute provides that, “. . . there is no claim against any person, essential business, business, entity, health care facility, health care provider . . . for loss, damage, physical injury, or death arising from COVID-19 . . .”[16] The statute notes the proliferation of: “lawsuits . . . filed across the country . . . against businesses seeking damages associated with a person’s exposure to COVID-19.”[17] As such, lawmakers concluded that the state’s reopening efforts would be hindered by the “[t]he threat of liability . . .”[18] Without citing any medical literature or reliable data, the state concluded that the “COVID-19 diagnosis and treatment has rapidly evolved . . . without the opportunity for the medical community to develop definitive evidence-based medical guidelines, making it difficult, if not impossible, to . . . establish applicable standards of care by which the acts or omissions of health care providers can fairly and objectively be measured.”[19] Appallingly, only businesses who engage in “in intentional conduct with actual malice” fall outside the scope of the immunity provided by the statute.[20]

Lawmakers must realize that the economic benefits of liability limitation are substantially outweighed by the risk that business will fail to maintain safe environments. Stopping the spread does not correlate with limiting liability.


[1] See Kimberly Chriscaden, Impact of COVID-19 on people’s livelihoods, their health and our food systems, World Health Org. (Oct. 13, 2020), https://www.who.int/news/item/13-10-2020-impact-of-covid-19-on-people’s-livelihoods-their-health-and-our-food-systems.

[2] Id.

[3] Anne Srades & Lance Lambert, Nearly 100,000 establishments that temporarily shut down due to the pandemic are now out of business, Fortune (Sept. 28, 2020), https://fortune.com/2020/09/28/covid-buisnesses-shut-down-closed/#:~:text=Nearly%20100%2C000%20establishments%20that%20temporarily%20shut%20down%20due%20to,are%20now%20out%20of%20business&text=More%20than%2097%2C966%20businesses%20have,com’s%20Local%20Economic%20Impact%20Report.

[4] Id.

[5] See Sarun Charumilind et al., When will the COVID-19 pandemic end?, McKinsey & Comp. (Mar. 26, 2021), https://www.mckinsey.com/industries/healthcare-systems-and-services/our-insights/when-will-the-covid-19-pandemic-end#

[6] See Id.

[7] See Coronavirus Restrictions and Mask Mandates for All 50 States, (updated Mar. 26, 2021), https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html

[8] Id.

[9] See Hailey Konnath, W.Va. Becomes Latest State With COVID Liability Shield Law, Law360 (Mar. 19, 2021), https://www.law360.com/articles/1367010/w-va-becomes-latest-state-with-covid-liability-shield-law

[10] Id.

[11] S. B. 277, 2021 Reg. Sess. (W. Va. 2021).

[12] See Hailey Konnath, W.Va. Becomes Latest State With COVID Liability Shield Law, Law360 (Mar. 19, 2021), https://www.law360.com/articles/1367010/w-va-becomes-latest-state-with-covid-liability-shield-law

[13] See Id.

[14] See Id.

[15] Id.

[16] S. B. 277, 2021 Reg. Sess. (W. Va. 2021).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

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