Federal and State Legislative Updates

NEW YORK 

Below is a link to all Executive Orders issued to date by Gov. Cuomo:

https://www.governor.ny.gov/executiveorders

 

6/19/20 – Lawsuits and legislation on COVID-19 losses inch forward.

Insurance Business America magazine reports that the fight around business interruption coverage and whether it will apply for businesses that experienced losses from COVID-19 shutdowns continues. Recently, insurers have opposed the consolidation of more than 100 federal lawsuits filed by insureds stating that they should receive business interruption coverage in these circumstances, with insurers arguing that each policy and circumstance is too unique to make a broader, overarching decision.

The stakes are clearly high in these legal battles. In the meantime, some states have looked into introducing legislation that could force insurers to cover business interruption insurance claims related to the COVID-19 pandemic, including New Jersey, Massachusetts, New York, Louisiana, Pennsylvania, South Carolina, and Ohio. However, in some cases, such as Louisiana, these bills have been shelved due to concerns that they could devastate insurance industries within states and bring years of litigation.

Another development regarding COVID-19 losses and easing the burden on businesses has been the proposition of liability shields by state governments, as well as the federal government. The Hill reported in May that Utah had signed legislation making all businesses and individuals immune from litigation based on others’ exposure to coronavirus on their property, and North Carolina, Oklahoma, and Wyoming have followed in similar footsteps.

https://www.insurancebusinessmag.com/us/news/breaking-news/lawsuits-and-legislation-on-covid19-losses-inch-forward-225495.aspx

 

6/2/20 – Four States Pass Laws Giving Businesses Immunity from COVID-19 Claims.

Claims Journal reports that four states have passed laws that grant businesses immunity from civil liability for claims relating to COVID-19, while legislation in at least three other states is advancing.

The bills signed into law by the governors of North Carolina, Oklahoma, Utah and Wyoming go far beyond the immunity that several states granted to health care providers at the onset of the coronavirus pandemic. North Carolina provides immunity to a broader swath of “essential businesses,” such as grocery stores and restaurants, from liability for any harm caused by COVID-19. Oklahoma, Utah and Wyoming provide immunity to everyone, as long as safety rules are followed and no laws are broken.

Bills to create similar liability protections have also passed the Louisiana House of Representatives and Senate, the Kansas Senate and the Arizona House. They now await consideration by the other chamber.

https://amp-claimsjournal-com.cdn.ampproject.org/c/s/amp.claimsjournal.com/news/national/2020/06/01/297332.htm

 

5/29/20 – New York bills would provide COVID-19 death benefits.

Business Insurance magazine reports that lawmakers in New York introduced legislation that would provide death benefits for public employees who have died after contracting COVID-19 in the workplace.

S.B. 8420, introduced Tuesday by Democratic Sen. Andrew Gounardes, would establish a presumption for public employees who were physically required to report to work as of March 1 and contracted COVID-19 that was determined to have been a significant contributing factor in their death.

To be eligible for the death benefit, workers must have contracted the virus within 45 days of reporting to work in person, have a confirmed positive laboratory test or be diagnosed before or after death by a licensed health care practitioner.

https://www.businessinsurance.com/article/20200527/NEWS06/912334780/New-York-bills-would-provide-COVID-19-death-benefits

 

5/29/20 – New Legislation: The Pandemic Risk Insurance Act of 2020.

JD Supra reports that Congressional Rep. Carolyn Maloney of New York has introduced a bill, H.R. 7011, titled the Pandemic Risk Insurance Act of 2020 (the Act).

The purpose of the Act is to establish a Federal program, including a Pandemic Risk Reinsurance Program (PRRP) within the Department of the Treasury, that provides for a transparent system of shared public and private compensation for business interruption losses resulting from a pandemic or outbreak of communicable disease, in order to:

  1. Protect consumers by addressing market disruptions and ensure the continued widespread availability and affordability of business interruption coverage for losses resulting from a pandemic or outbreak of a communicative disease; and

2. Allow for a transitional period for the private markets to stabilize, resume pricing of such insurance, and build capacity to absorb any future losses while preserving State insurance regulation and consumer protections.

One key aspect of the Act, if enacted, is that, for participating insurers, exclusions in effect on the date of enactment that specifically exclude losses covered under the PRRP are void, and any state approval of those exclusions is preempted — unless the exclusion can meet certain criteria, such as written approval from the policyholder.

The Act authorizes the Treasury Secretary to administer the PRRP, and:

3.  Establishes that participation in the program is voluntary for insurers, who may sign up on an annual basis.

4.  For participating insurers, mandates that they provide business interruption insurance policies — including event cancellation — that include pandemics.

5. Provides that the PRRP will only be triggered when aggregate insured losses for a covered public health emergency exceed $250 million.

6.  Once the PRRP has been triggered, establishes that the Federal share of compensation is equal to 95% of insured losses that exceed the insurer deductible.

7.  Sets each participating insurer’s deductible at 5% of the value of the insurer’s direct earned premiums during the preceding calendar year.

8.  Establishes a $750 billion program cap for Federal compensation, and if losses exceed the cap, authorizes the Treasury Secretary to determine the pro-rata share of compensation beyond the cap.

9.  Clarifies that the Act does not prohibit insurers from purchasing reinsurance coverage in the private markets.

In addition to defining the key terms, the Act establishes that the Treasury Secretary has authority to investigate and audit claims, prescribe regulations and procedures, issue interim final rules or procedures (including discretionary recoupment of Federal compensation under the PRRP). The Treasury Secretary will also require participating insurers to submit information relating to insurance coverage for business interruption resulting from covered public health emergencies. It also requires the Secretary to submit reports on an annual basis to Congress on the PRRP.

https://www.jdsupra.com/legalnews/new-legislation-the-pandemic-risk-40897/

 

5/7/20 – Gov. Cuomo issued Executive Order 202.28 Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency.

Gov. Cuomo issued Executive Order 202.28 extending certain emergency measures by thirty days until June 6, 2020, including but not limited to the following:

  • Extending the provisions tolling the Statute of Limitations until June 6, 2020; and
  • There shall be no initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage, for nonpayment of such mortgage, owned or rented by someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic for a period of sixty days beginning on June 20, 2020.

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO202.28.pdf

 

4/20/20 – Gov. Cuomo calls on the Federal Government to provide hazard pay for Essential Public Workers.

On April 20, 2020, Gov. Cuomo called on the federal government to provide hazard pay for essential public workers on the front lines, proposing a 50 percent bonus for these workers. According to the Center for Economic and Policy Research, 41 percent of frontline workers are people of color. Of those frontline workers, 45 percent of public transit workers, 57 percent of building cleaning service workers and 40 percent of healthcare workers are people of color. People of color are also disproportionately represented in delivery and childcare services, and approximately one third of frontline workers are members of low-income households.

https://www.governor.ny.gov/news/amid-ongoing-covid-19-pandemic-governor-cuomo-calls-federal-government-provide-hazard-pay

 

4/17/20 – New York immunity law shields nursing homes as virus toll soars.

Law 360 reports that New York State passed a law granting immunity to nursing homes as a result of an increase in deaths at these facilities statewide.  New York has enacted the “Emergency Disaster Treatment Protection Act into the state fiscal year 2021 budget.  The EDTPA provides a qualified immunity to healthcare facilities and healthcare professionals from civil and criminal liability.  An exception would be for acts that are willful, intentional or grossly negligent.

https://www.law360.com/newyork/articles/1264434/ny-immunity-law-shields-nursing-homes-as-virus-toll-soars?nl_pk=a8ab7914-0420-4e98-8e4e-ca0dba27d1b3&utm_source=newsletter&utm_medium=email&utm_campaign=newyork&read_more=1

 

4/15/20 – Gov. Cuomo issues an Executive Order 202.17 requiring all people in New York to wear a mask or face covering in public.

Gov. Cuomo issued Executive Order 202.17 requiring all people in New York to wear a mask or a face covering when out in public and in situations where social distancing cannot be maintained, such as on public transportation. The Executive Order will go into effect on Friday, April 17th. Remember that wearing a face covering does not mean you can ignore other precautions — we still direct all New Yorkers to stay at home for all but essential errands.

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.17.pdf

 

4/14/20 – Gov. Cuomo issued Executive Order 202.16 Ordering all Essential Businesses to provide face coverings for employees.

On April 14, 2020, Gov. Cuomo issued E.O. 202.16 requiring “all essential businesses or entities, any employees who are present in the workplace shall be provided and shall wear face coverings when in direct contact with customers or members of the public. Businesses must provide, at their expense, such face coverings for their employees.” This requirement shall be effective Wednesday, April 15 at 8 p.m.

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.16_final.pdf

 

4/6/20 – New York grants limited immunity to Medical Professionals responding to Covid-19.

The New York Law Journal reports that Gov. Cuomo issued an Executive Order containing a provision for limited immunity for injuries sustained directly as a result of an act or omission by medical professionals in the course of providing medical services in support of the state’s response to the COVID-19 outbreak. The state has now passed the Emergency or Disaster Treatment Protection Act, Public Health Law Article 30-D, codifying limited immunity for health care professionals and facilities during the pendency of the emergency declaration in place in New York as of March 7, 2020.

https://www.law.com/newyorklawjournal/2020/04/06/covid-19-legal-measures-an-addendum/

 

3/27/20 – Gov. Cuomo of NY issued Executive Order 2026 requiring the closure of all “non-essential” businesses.

Gov. Cuomo has issued an Order requiring residents stay at home and all non-essential businesses to close until further notice. Essential businesses include:

  • Essential Health Care Operations;
  • Essential Infrastructure;
  • Essential Manufacturing;
  • Essential Retail;
  • Essential Services;
  • News Media;
  • Financial Institutions;
  • Providers of Basic Necessities to Economically Disadvantaged Populations;
  • Construction;
  • Defense;
  • Essential Services Necessary to Maintain the Safety, Sanitation and Essential and
  • Vendors that Provide Essential Services or Products, Including Logistics and Technology Support, Child Care and Services.

https://esd.ny.gov/guidance-executive-order-2026

 

3/19/20 – New York allowing virtual notarization of documents.

On March 19, 2020, Gov. Cuomo signed an Executive Order permitting the virtual notarization of documents under certain conditions.

The following are the conditions that must be met for virtual notarization:

  • The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
  • The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
  • The person must affirmatively represent that he or she is physically situated in the State of New York;
  • The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed;
  • The notary may notarize the transmitted copy of the document and transmit the same back to the person; and,
  • The notary may repeat the notarization of the original signed document as of the date of execution provided the Notary receives such original signed document together with the electronically notarized copy within thirty days after the date of execution.

https://rew-online.com/cuomo-allowing-virtual-notarizations-during-crisis/

 

3/10/20 – New York seeking information from carriers on policies covering business interruption.

New York is following the lead of other progressive states, such as New Jersey, in potentially requiring insurance carries to pay on business interruption coverage through legislation.  A news article published in the Insurance Journal on March 10, 2020 , details how the New York State Department of Financial Services provided instructions to each insurer to provide the DFS the with information regarding the volume of business interruption coverage, civil authority coverage, contingent business interruption coverage and supply chain coverage the insurer wrote that has not lapsed as of March 10, expressed in amounts of direct premium, policy types and numbers of policies written of each type.  Each insurer was also required to examine the policies it issued and explain the coverage each policy offers in regard to COVID-19, both presently and in the future if there is potential for COVID-19 coverage as the situation could develop. For each policy type, insurers were asked to prepare information in a clear and concise explanation of benefits suitable for policyholder review.  The instructions then asked insurers to send the explanations to each of their policyholders for the applicable policy types as well as to DFS, along with a representation that the explanations have been provided to policyholders.

https://www.insurancejournal.com/news/east/2020/03/20/561801.htm

 

NEW JERSEY

Below is a link to all Executive Orders issued to date by Gov. Murphy: 

https://nj.gov/infobank/eo/056murphy/approved/eo_archive.html 

 

5/13/20 – NJ to reopen nonessential businesses for curbside pickup, allow construction.

The Asbury Park Press reports that New Jersey’s Gov. Murphy will allow some retail stores to reopen for curbside pickup service only and non-essential construction to resume at 6 a.m. Monday, May 18.  Murphy said he is taking the action because of falling numbers of new and total hospitalizations and new coronavirus cases.

https://www.app.com/story/news/coronavirus/2020/05/13/coronavirus-nj-reopening-nonessential-businesses-curbside-pickup/5183036002/

 

4/9/20 – Gov. Murphy issues Executive Order 123 Extending Insurance Premium Grace Periods.

Governor Phil Murphy signed Executive Order No. 123, extending grace periods during which certain insurance companies, including health insurers, life insurers, and property and casualty insurers, will not be able to cancel policies for nonpayment of premiums. More specifically, carriers must provide grace periods as follows:

1) Period of not less than 10 days for hospital service corporations (N.J.S.A. 17:48-6), medical service corporations (N.J.S.A. 17:48A-6), dental service corporations (N.J.S.A. 17:48C-8), and health service corporations (N.J.S.A. 17:48E-19);

2) Not less than 31 days for individual health insurance policies (N.J.S.A. 17B:26-6); and for the time specified in a group policy (N.J.S.A. 17B:27-37);

3) Life insurance for a period of not less than 30 days for traditional life insurance (N.J.S.A. 17B:25-3), and in certain circumstances for account value life insurance policies not less than 60 days (N.J.A.C. 11:4-41.3);

4) Property and casualty insurance following a “grace period” including but not limited to, for other than personal automobile and workers’ compensation, upon not less than 10 days’ written notice to the insured (N.J.A.C. 11:1-20.2); for personal automobile insurance, upon not less than 15 days written notice to the insured (N.J.S.A. 17:29C-8, N.J.A.C. 11:3-7.6, and 11:3-8.11); and for workers’ compensation insurance, upon not less than 30 days’ written notice to the insured (N.J.S.A. 17:29C-1); and

5) Insurance premium finance company may cancel an insurance contract upon default, upon not less than 10 days written notice under N.J.S.A. 17:16D-13; and

https://nj.gov/infobank/eo/056murphy/pdf/EO-123.pdf

 

4/7/20 – Gov. Murphy of New Jersey extends the declaration of a Public Health Emergency by 30 days.

On April 7, 2019, Governor Phil Murphy signed Executive Order No. 119, which extends the Public Health Emergency declared on March 9, 2020 through Executive Order No. 103. Under the Emergency Health Powers Act, a declared public health emergency expires after 30 days unless renewed.

https://nj.gov/infobank/eo/056murphy/pdf/EO-119.pdf

 

3/25/20 – NJ Legislature Places a Hold on Bill A-3844 Which Would Require Carriers to Pay Business Interruption Claims.

On March 25, 2020, Property Casualty 360 issued an article discussing how the NJ State Legislature has placed a hold on Bill A-3844, which would require carriers to cover business interruption claims. It is reported that A-3844 would compel insurance companies to cover claims by New Jersey small business owners for damages resulting from interruption of their operations due to the COVID-19 state-of-emergency declaration by Gov. Phil Murphy. This and other executive orders forced them to shut down temporarily. The bill remains a work in progress.

https://www.propertycasualty360.com/2020/03/25/covid-19-and-business-insurance-nj-legislation-still-in-play-414-175166/

 

3/21/20 – Gov. Murphy of NJ issued an Executive Order requiring all residents to stay-at-home.

Gov. Murphy issued an Executive Order requiring all residents to “stay at home.” The Executive Order further directs the closure of all non-essential retail businesses to the public, with the exceptions of:

  • Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store;
  • Pharmacies and medical marijuana dispensaries;
  • Medical supply stores;
  • Gas stations;
  • Convenience stores;
  • Ancillary stores within healthcare facilities;
  • Hardware and home improvement stores;
  • Banks and other financial institutions;
  • Laundromats and dry-cleaning services;
  • Stores that principally sell supplies for children under five years;
  • Pet stores;
  • Liquor stores;
  • Car dealerships, but only for auto maintenance and repair, and auto mechanics;
  • Printing and office supply shops; and
  • Mail and delivery stores.

https://covid19.nj.gov/faqs/nj-information/general-public/governor-murphy-announces-statewide-stay-at-home-order-closure-of-all-non-essential-retail-businesses

 

3/19/20 – New Jersey seeks to expand business interruption coverage.

The Insurance Journal details the proposed New Jersey Bill A-3844, which provides a framework for businesses that endure business interruption losses due to the COVID-19 pandemic to recover those losses from their insurer. If enacted, it will be retroactive for any insured with a business interruption policy in place from March 9, 2020, when New Jersey Governor Phil Murphy first declared a public health emergency and a state of emergency due to the virus. The bill would apply to New Jersey businesses with less than 100 eligible employees, meaning full-time employees working a normal week of 25 hours or more.

https://amp-insurancejournal-com.cdn.ampproject.org/c/s/amp.insurancejournal.com/news/east/2020/03/19/561643.htm

https://www.njleg.state.nj.us/2020/Bills/A4000/3844_I1.PDF

 

NATIONWIDE

6/19/20 – Feds Unveil Simplified Application For PPP Loan Forgiveness.

Law 360 the Small Business Administration and U.S. Department of the Treasury on Wednesday released a simplified version of the application that small businesses must file to receive forgiveness on their Paycheck Protection Program loans, a move that comes amid calls to lighten the paperwork burden facing borrowers.

The agencies’ new “EZ” loan forgiveness application clocks in at just three pages and can be used by self-employed borrowers and businesses that didn’t significantly cut worker wages or salaries after taking out loans from the $660 billion coronavirus relief program.

Businesses using the simplified form would also need to have either kept their employee head counts steady or taken a lasting hit to their activity levels because of public health restrictions tied to the COVID-19 pandemic, according to the agencies.

https://www.law360.com/articles/1283473?sidebar=true

 

 

5/18/20 – Pennsylvania bill would define COVID-19 as property damage.

Property Casualty 360 reports that the Pennsylvania Senate is weighing a bill that would include losses spurred by the COVID-19 global pandemic under property and business interruption insurance coverage.

Although SB. 1127, which was introduced on April 30, does not explicitly state that insurers must cover COVID-19 business interruption claims, it would require insurers to pay claims that standard property policies do not typically cover. Specifically, the bill states that if a covered property is located within a municipality where “the presence of the COVID-19 coronavirus has otherwise been detected,” that property is “deemed to have experienced property damage.”

Coronavirus is deemed to be “detected” when at least one or more persons present in that municipality has been positively identified as having been infected by COVID-19.  The bill also states that Gov. Tom Wolf’s March 19 emergency order to close businesses is to be considered an order of civil authority under a first-party insurance policy which limits, prohibits, or restricts access to non-life-sustaining business locations “as a direct result of physical damage at or in the immediate vicinity of those locations.”

The bill would apply to all insurance policies that were active as of March 6, and would potentially constitute an interpretation of several key policy terms including “direct physical loss, damage, or injury to tangible property,” a term that has been the core of the majority of COVID-19 insurance complaints that have been filed thus far.

https://www-propertycasualty360-com.cdn.ampproject.org/c/s/www.propertycasualty360.com/2020/05/13/bipartisan-pa-bill-interprets-property-damage-to-include-covid-19-414-178728/?amp=1

 

5/1/20 – Federal Government proposes a “Reinsurance Backstop” to Cover Insurance Industry Losses Due to Pandemic-Related Claims.

The National Law Review issued an article discussing how the federal government has proposed a draft bill, identified as the “Pandemic Risk Insurance Act of 2020,” that would establish a federal “reinsurance backstop” for pandemic insurance industry losses in excess of $250 million. The intent of the Act would be to provide support to the insurance industry for pandemic risk. The proposed bill seeks to create a federal program that would provide for a system of shared public and private compensation for business interruption losses resulting from a pandemic or outbreak of communicable disease. The proposed Act is said to mirror the Terrorism Risk Insurance Act, which was enacted in 2002 in response to the attacks of 9/11.

The program would be triggered when industry losses exceed the $250 million threshold and aggregate losses would be capped at $500 billion in a calendar year for both insurers and the government. Insurers that participate in the program will be charged an annual premium for reinsurance coverage, purportedly based on the actuarial cost of providing such reinsurance coverage, including costs of administering the program.

In return for a federal backstop on pandemic losses, insurers would agree to make available business interruption insurance coverage for insured losses that do not differ materially from the terms, amounts and other coverage limitations applicable to losses arising from events other than public health emergencies. The government would pay 95 percent of the losses in excess of an individual insurer’s deductible with the rest to be paid by the individual insurer.

https://www-natlawreview-com.cdn.ampproject.org/c/s/www.natlawreview.com/article/federal-government-proposes-reinsurance-backstop-to-cover-insurance-industry-losses?amp

 

4/20/20 – Vermont looks to reopen construction and other “low contact” professional services.

On April 20, 2020, The Hill reports that Vermont has begun allowing some “low contact” businesses to reopen with a two-person staff limit, the governor’s office announced Monday. Per the article, Gov. Phil Scott (R), in an addendum to his stay-at-home order, directed the state’s Agency of Commerce and Community Development (ACCD) to issue guidance to allow outdoor businesses and construction operations — including those working in civil engineering, exterior construction, public works and landscaping — with crews of two or fewer people to operate. The update to the order will also allow the resumption of work for single-person “low contact” professional services such as appraisers, attorneys and realtors, if the employees follow the health requirements.   The addendum, which also includes new health and safety requirements and encourages face coverings, maps a “measured, phased approach” to reopening the state government, according to his press release.

https://thehill.com/homenews/state-watch/493700-vermont-begins-reopening-low-contact-businesses-with-two-person-staff

 

4/17/20 – Capitol Hill considering a federal reinsurance program to backstop business interruption losses.

Law 360 reports that there is a proposed federal reinsurance program for pandemic risks that is under consideration by lawmakers on Capitol Hill may galvanize more insurance carriers to offer coverage for businesses’ losses due to future viral outbreaks, but pricing such policies could prove difficult because of the dearth of historical data on large-scale pandemic events.  Per the draft version of the Pandemic Risk Insurance Act of 2020, which would create a multibillion-dollar backstop for insurers offering business interruption policies that explicitly cover policyholders’ losses due to disruptions in operations attributed to an outbreak or pandemic that leads to a federal emergency declaration. The bill is part of a series of legislation being promoted by the House Financial Services Committee in response to the COVID-19 crisis.

While participation in the proposed reinsurance program would be voluntary, insurers that sign up would be required to offer pandemic coverage in all their business interruption policies. Participating insurers would collectively be responsible for covering the first $250 million of business interruption losses incurred by their policyholders. Once that threshold is reached, a federal fund administered by the U.S. Treasury Department would cover 95% of additional losses up to $500 billion in a single year, with the remaining 5% spread among the insurers.

https://www.law360.com/insurance/articles/1264228/proposed-virus-coverage-backstop-leaves-pricing-in-the-air?nl_pk=98c683dd-4064-4882-a3aa-349794507b75&utm_source=newsletter&utm_medium=email&utm_campaign=insurance

 

 

4/17/20 – 6 states with medical immunity and 2 without.

Law 360 reports that while the CARES Act, the $2 trillion stimulus package the president signed into law last month, protects volunteer health care workers from liability in the absence of reckless conduct or gross negligence, state lawmakers have taken further steps to immunize health care providers so they can give much-needed treatment without the fear of getting sued.   Law360 provides a compilation of what some states have done to protect health care providers from liability. Not all states with immunity laws or executive orders are included.

New York

The Empire State on April 2 passed the Emergency Disaster Treatment Protection Act, which grants broad immunity to hospitals, nursing homes, physicians and nurses and other health care providers. The bill not only immunizes health care providers for the treatment of coronavirus patients but provides a legal haven for any medical care given by a provider impacted by the COVID-19 outbreak. The new law doesn’t bar claims for willful, reckless or criminal misconduct or gross negligence but makes clear that any bad decisions stemming from staffing shortages or a lack of resources can’t be considered to be in that category. The law will remain in effect for the duration of the state’s public health crisis.

New Jersey

Gov. Phil Murphy on April 14 signed legislation that guards health care professionals and facilities from civil and criminal liability in connection with their treatment of COVID-19 patients. Under the new law, which is retroactive to March 9, medical workers can’t be held liable for patient injuries or deaths that were sustained due to their actions or inactions in support of the state’s coronavirus public health emergency.  The law also immunizes health care providers for good-faith treatment provided via telehealth, as well as treatment rendered outside of a physician’s specialty. It also provides temporary certification of emergency medical technicians with expired licenses or active paramedics from out of state.

Michigan

Gov. Gretchen Whitmer issued an executive order March 29 easing regulations for certain health care professionals in order to get them on the front lines more quickly and reinforced a state disaster relief law, which gives broad immunity to health care providers during emergencies. Executive Order 2020-30 states that under the authority of Michigan’s Emergency Management Act, health care professionals and facilities working in support of the state’s COVID-19 response will not be held liable for a person’s injuries or death, “regardless of how or under what circumstances or by what cause those injuries are sustained.” Cases of gross negligence are not covered, according to the order.

Massachusetts

Gov. Charlie Baker is widely expected to approve a bill he himself introduced that would grant broad legal immunity to the state’s doctors, nurses and hospitals as they battle the COVID-19 pandemic. Baker announced April 8 that the proposed legislation would protect health care professionals, including physicians, nurses and emergency medical technicians, from civil liability “when the care that they provide is impacted by the COVID-19 emergency.” The bill also provides liability protection for certain health care facilities such as nursing homes, assisted living facilities and community health centers.

Illinois

Gov. J.B. Pritzker issued an executive order April 1 granting civil liability immunity to health care providers providing medical treatment in support of the COVID-19 outbreak, absent gross negligence or willful misconduct. Executive Order 2020-19 covers a health care professional’s or facility’s decision to cancel or postpone elective surgeries and non-emergent procedures. In addition to hospitals, medical facilities protected under the order include nursing homes, surgery and dialysis centers and government-funded health clinics. Like New York, the new Illinois law protects health care providers even if they are not treating coronavirus patients, so long as a patient’s injury or death occurred when a provider was “engaged in the course of rendering assistance to the state by providing health care services in response to the COVID-19 outbreak.” In addition, the order shields health care facilities from liability in connection with decisions they made to preserve personal protective equipment.

Connecticut

On March 10, Gov. Ned Lamont issued an emergency order granting immunity to health care providers and facilities providing good-faith medical services in support of the state’s COVID-19 response. The order covers any actions related to a lack of resources attributable to the pandemic and effectively relaxes the standard of care in situations impacted by the outbreak. Not covered are acts of “crime, fraud, gross negligence and willful misconduct,” according to the order. Health care professionals who are licensed in any U.S. state are covered under the order, as are any retired medical workers with inactive licenses who are authorized by the state health department to provide care, according to the order. In addition to hospitals, health clinics, nursing homes and field hospitals are also shielded by the emergency order during the duration of Connecticut’s health care emergency.

Pennsylvania

Health care industry lobbying groups are urging Gov. Tom Wolf to issue an executive order granting immunity to health care providers impacted by the coronavirus pandemic after efforts to get a related law on the books fizzled in the state legislature without a vote.  The Pennsylvania Health Care Association sent a letter April 8 to Wolf asking him to follow the leads of New York and New Jersey to issue an order protecting health care providers.

Florida

As in Pennsylvania, advocates for the Sunshine State’s health care industry are asking Gov. Ron DeSantis to issue an executive order to provide legal cover for health care providers in a state with a high number of nursing home patients.

https://www.law360.com/newyork/articles/1264964/6-states-with-covid-19-medical-immunity-and-2-without?nl_pk=a8ab7914-0420-4e98-8e4e-ca0dba27d1b3&utm_source=newsletter&utm_medium=email&utm_campaign=newyork

 

4/13/20 – California Order requires return of Insurance Premiums on Multiple Policy Lines.

On April 13, 2020, California Commissioner Ricardo Lara ordered insurance companies to return insurance premiums to consumers and businesses.  The Commissioner’s Bulletin covers premiums paid for at least the months of March and April – including the month of May if “shelter in place” restrictions continue – in at least six different insurance lines:

  • Private passenger automobile;
  • Commercial automobile;
  • Workers’ compensation;
  • Commercial multi-peril;
  • Commercial liability;
  • Medical malpractice; and
  • Any other insurance line where the risk of loss has fallen substantially as a result of the COVID-19 pandemic.

“Commissioner Lara hereby orders insurers to make an initial premium refund for the months of March and April to all adversely impacted California policyholders in the following lines of insurance, as quickly as practicable, but in any event no later than 120 days after the date of this Bulletin”

http://www.insurance.ca.gov/0400-news/0100-press-releases/2020/upload/nr038AutoPremiumRefundsCOVID04132020.pdf

 

4/7/20 – Pennsylvania bill would force COVID-19 business interruption coverage 

Business Insurance magazine reports that Pennsylvania lawmakers have joined Louisiana, New York, Ohio, Massachusetts and New Jersey in introducing a bill that would force insurers to retroactively cover business interruption claims due to COVID-19. The article discusses how a bipartisan group of 37 Pennsylvania legislators sponsored House Bill 237, which would require insurers providing coverage for “loss or damage to property, which includes the loss of use and occupancy and business interruption” to include “coverage for business interruption due to global virus transmission or pandemic.” It would apply to policies in force in Pennsylvania on March 6, which is “the date of the Proclamation of Disaster Emergency concerning the coronavirus pandemic.” Like bills introduced in other states it would apply to businesses with fewer than 100 full-time employees.

https://www.businessinsurance.com/article/20200407/NEWS06/912333911/Pennsylvania-bill-would-force-COVID-19-business-interruption-coverage-coronaviru

 

3/30/20 – Democrats eye major infrastructure component in next coronavirus package.

A news report from The Hill on March 30, 2020, discusses a possible coronavirus relief package for infrastructure. It is reported that democrats’ fourth phase of coronavirus stimulus would be largely focused on helping the front-line medical workers, homebound parents and patients afflicted by the deadly virus — people who may have fallen through the cracks … in Congress’s earlier responses to the fast-spreading pandemic. As an additional component, Democrats are also eyeing new funding for water, broadband, schools and other infrastructure systems that have proven insufficient, they said, in the face of the current coronavirus crisis. Such a funding boost would not only promote public health by updating systems like public drinking water and telemedicine, they argued, it would also create jobs and provide a shot in the arm for an economy devastated by the virus.

https://thehill.com/policy/transportation/490243-democrats-eye-major-infrastructure-component-in-next-coronavirus

 

3/25/20 – Massachusetts and Ohio seek to expand business interruption coverage.

Law360 reports that “lawmakers in Ohio and Massachusetts have proposed bills that would retroactively expand business interruption insurance policies to cover companies’ losses attributable to the outbreak of the novel coronavirus, following on the heels of New Jersey legislators’ recent introduction of a similar proposal.”  Ohio state Reps. Jeffrey Crossman and John M. Rogers, both Democrats, introduced H.B. 589, while Massachusetts state Sen. James B. Eldridge, also a Democrat, introduced S.D. 2888. Generally speaking, both measures would effectively rewrite certain business interruption policies to include the coronavirus pandemic as a covered cause of loss.  The New Jersey and Ohio bills would implicitly override common terms contained in business interruption policies, such as exclusions for losses due to viruses and the requirement that an interruption in a policyholder’s operations be attributable to “direct physical loss” or damage to its property. The Massachusetts measure is even more explicit, stating that insurers cannot deny business interruption claims based on “COVID-19 being a virus, even if the relevant insurance policy excludes losses resulting from viruses” or “there being no physical damage to the property of the insured or to any other relevant property.”

https://www.law360.com/articles/1257074