New Jersey Debates Whether to Retain COVID-19 Civil Immunity Provisions

When the federal government made an emergency disaster declaration in March of 2020 as a result of the COVID-19 pandemic, which triggered the application of a number of federal civil immunity statutes, most state governors issued their own emergency declarations. In addition to providing more flexibility on state licensing laws for health care professionals as well as facilitating a more expedited process for privileging and credentialing these practitioners, many of these declarations provided civil immunity protections. These protections, relating to patient or employee injury or death due to lack of PPE, short staffing, overcrowding and related problems caused by the pandemic typically, are time limited. Meaning, the protections only apply during the declared emergency and would no longer be available once the disaster declaration is lifted.

There has been a debate in some jurisdictions, and now New Jersey, whether these immunity provisions should lapse, as argued by personal injury attorneys and patient advocacy groups, or retained at this point in time given a continuation of the crises. New Jersey currently has one of the nation's highest infection rates and health care providers and their associations are stating that the immunity protections should remain in effect for the reasons noted below.

Lessons Learned

1. If taking advantage of federal and/or state civil immunity protections a provider needs to understand the specific statutory requirements in order to effectively assert the protections if sued because of resulting patient or employee injuries.

2. Providers need to consistently monitor any state executive and agency pronouncements which can affect the scope as well as the duration of these temporary civil immunity protections.

3. Providers should clearly document how staffing and PPE shortages or other shortfalls were caused by the pandemic and what steps they took to mitigate in order to better support assertion of the protections.