CHARLESTON — The state Senate has passed a bill that would provide immunity from civil litigation regarding COVID-19 matters.
The COVID-19 Jobs Protection Act, or Senate Bill 277, passed the Senate by a 25-9 vote February 19. The bill now heads to the House of Delegates.
The bill would be retroactive to January 1, 2020. It also would allow for workers’ compensation claims to be filed related to the pandemic.
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The vote closely followed party line. Democratic Senators Mike Woelfel (D-Cabell) and Robert Plymale (D-Wayne) were the two who broke party lines and voted in favor of passage.
Senators debated the merits of the bill during the Senate floor session before the vote.
Democrats said they were in favor of the intent of the legislation, but they expressed concerns about the broad scope of the bill.
“I have no bias against this bill,” Senator Mike Romano (D-Harrison) said. “I think the COVID immunity bill is a good bill. We do need to protect our businesses.
“We’re going to allow intentional conduct to receive the benefit of immunity. Why would we not want to protect against that kind of conduct? There’s no incentive to protect our workers. There’s no incentive to protect our customers. There’s no incentive to protect our children. You’re free to do whatever you want. That’s bad business. That’s bad legislation.”
Senator Richard Lindsay (D-Kanawha) agreed.
He proposed two amendments that were voted down. One would have added language that would allow lawsuits against those “who with actual malice or a conscious, reckless, and outrageous indifference to the health, safety, and welfare of others.” The second would have put an end date on the bill.
“Most employers do the right thing,” Lindsay said. “They take care of their people. But, this bill fails in holding accountable those few bad actors who are going to be allowed by this bill to get away with it.
“I support immunity for people who played by the rules. This bill gives license for egregious conduct. That’s not what we should be about.”
Senator William Ihlenfeld (D-Ohio) concurred. He cited other state’s with Republican-controlled legislatures that have passed bills he calls much better legislation.
“There are good examples of bills around the country that provide sufficient protections,” he said, citing Georgia which has immunity except in cases of gross misconduct. “This might be the most far-reaching bill if it becomes law. This might be the worst COVID liability bill if it becomes law.”
Ihlenfeld also made a reference to the New Year’s Eve party at The Greenbrier Resort, which is owned by Republican Governor Jim Justice. The party drew criticism after social media photos showed people crowding the facility and not wearing masks.
“This bill is a liability time machine,” he said. “It will give immunity to people who have committed bad acts. Everything bad that happened last year is protected.
“This bill is well-intentioned, but there should be an exemption for gross negligence, for the reckless infliction of harm for the intentional inflection of harm. This is a bad bill.”
A few Republican senators spoke in support of passage.
Senate Judiciary Chairman Charles Trump (R-Morgan) called the bill an important one for West Virginia right now. He also said he understands why Democrats wanted exemptions for gross negligence.
“It is unusual, I’ll concede that,” Trump said. “We are creating liability protections that are very broad. We haven’t had mountains of litigations in West Virginia yet. And this bill will prevent a lot of that.”
Trump said there more than 1,000 workplace-related COVID lawsuits were filed last year, including nearly 200 workplace safety cases. He said there was a record number of class-action lawsuits including employees suing employers.
“Is that what we want to unleash in West Virginia?” Trump asked. “I think the answer is no. This bill will preempt and preclude the lawsuits.
“Let’s move West Virginia forward without the specter of litigation.”
Romano noted that there has been no such cases filed in West Virginia.
“What does that tell you?” He asked. “There’s not mass litigation.”
The president of the West Virginia Association for Justice, a statewide group of trial attorneys, said he’s troubled by the Senate not working to allow legal action against those who blatantly haven’t followed state and federal guidelines.
“We’re disappointed the Senate do what we think is necessary to protect West Virginians,” Jon Mani told The West Virginia Record. “Having no protection against these willful and unlawful actions is concerning.
“If the belief is that we’re trying to move forward, the breadth of this thing goes way outside the bounds of COVID-19. It encompasses all medical malpractice and nursing home cases. It’s overreach.”
Mani said he’s cautiously optimistic things could change in the House of Delegates.
“We’re hopeful cooler minds can prevail,” he said. “I think you’re going to see other opposition.”
Greg Thomas with West Virginia Citizens Against Lawsuit Abuse praised the bill’s passage.
“Our state Senate leaders have really stepped up to help job creators, healthcare providers and taxpayers with this very strong COVID liability bill,” Thomas told The Record. “At a time of great uncertainty, the threat of frivolous lawsuits should not be something top-of-mind for West Virginians. This bill will go a long way toward helping our state recover from the COVID lockdowns.
“Let’s hope for swift passage in the House of Delegates.”