House amends COVID liability bill, prepares for final vote

Legislation to provide businesses and individuals with protection from COVID-related civil liability is getting closer to the governor’s desk, with the Indiana House amending the bill and setting it up for a final House vote Thursday.

Senate Bill 1 protects businesses and individuals from civil tort liability “for damages arising from COVID-19: (1) on the premises owned or operated by the person; (2) on any premises on which the person or an employee or agent of the person provided property or services to another person; or (3) during an activity managed, organized, or sponsored by the person.” It also protects manufacturers from product liability lawsuits related to protective products such as personal protective equipment.

Previously in the Senate, SB 1 was amended to add protections for medical professionals who were forced to delay or modify procedures because of the pandemic.  Under executive orders issued by Indiana Gov. Eric Holcomb, non-emergency elective procedures were delayed to accommodate the influx of COVID patients and protect against the spread of the virus.

However, acts or omissions that constitute gross negligence or willful and wanton misconduct are not protected from civil liability under SB 1.

In the House on Tuesday, Rep. Jerry Torr, R-Carmel, introduced an amendment to slightly change the definition of conduct “arising from” COVID-19. The Senate language provided immunity for “services, treatments, or other actions performed in response to COVID-19,” but the amendment adjusted the language to apply to “services, treatments, or other actions performed for COVID-19.”

Concerns were raised in committee that the “in response to” language could essentially provide blanket immunity to businesses. Torr, who is sponsoring SB 1 in the House, said he did not read the original language in that manner, but he authored the amendment to address those concerns. Also, the amendment clarifies that the bill applies to causes of action accruing on or after March 1, 2020.

Sen. Ed DeLaney, D-Indianapolis, also offered an amendment on the House floor, but his motion was unsuccessful. He sought to reinstate Senate language holding that nursing homes cannot claim immunity based on COVID-caused staff shortages that kept staff from providing the normal duty of care.

That language was removed by the House Judiciary Committee, but DeLaney’s amendment would have restored it. He argued that unlike restaurants or bowling alleys, nursing homes are in the unique position of providing 24-7 care. Given that most nursing homes were locked down due to the virus, preventing family members from checking on loved ones, DeLaney said those facilities should not be able to claim COVID-related immunity.

Torr said he was sympathetic to DeLaney’s point, as Torr’s mother recently died while in the care of a nursing home, though not from COVID. But on the other hand, Torr rejected the idea that SB 1 would provide broad immunity for nursing homes, where the largest population of Hoosiers have died from the virus.

“It’s not (broad),” Torr said. “It’s for COVID.”

Rep. Pat Boy, D-Michigan City, supported DeLaney’s amendment, recounting her own experience with her husband being in a nursing home eight years ago. Back then, Boy said, she could visit her husband daily and ensure that issues such as trimming his nails and combing his hair were taken care of. But with COVID-related lockdowns, families don’t have that luxury, she said.

DeLaney’s amendment was defeated on a 62-29 vote.

Rep. Curt Nisly, R-North Manchester, put forth the third and final amendment to SB 1, but like DeLaney’s, his was unsuccessful.

Nisly’s amendment would have exempted employers from immunity if they “discriminate” against employees who decline to get the COVID-19 vaccine. Two vaccines have received emergency use authorization from the Food and Drug Administration. Nisly’s amendment failed on a 90-3 vote.

While Torr said he was not against the concept of Nisly’s amendment, he believed it would slow the bill’s progress. Senate Bill 74 would take the same approach to employer-mandated vaccines, but Torr said the Senate legislation “does not have the votes to pass.”

“The effect of adopting this (amendment) would be to hold up Senate Bill 1, send it conference committee and put off its enactment, when we want the exact opposite,” Torr said. SB 1 has been designated an emergency order, and Torr said the goal is to get it on the governor’s desk by the end of February.

SB 1 is scheduled for a final vote in the House on Thursday. If passed, it will be sent back to the Senate for a review of the House amendments.