Another Arrow in the Quiver or a Regulatory Risk? Analyzing SB 359’s Immunities for Georgia Providers in the Fight Against COVID-19 Liability

Written by: Brittany H. Cone, Esq. and Leesa M. Guarnotta, Esq.

As Georgia continues to reopen, the Georgia General Assembly’s recent passage of Senate Bill 359, known as the “Georgia COVID-19 Pandemic Business Safety Act” (the “Safety Act”) will provide relief to individuals and entities concerned with possible liability associated with the transmission of and potential exposure to COVID-19. Notably, the Act expressly provides immunity to skilled nursing facilities, intermediate care facilities, and personal care homes for virtually all claims relating to or resulting from COVID-19. Exceptions to the immunity granted are instances of gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.

The Act aims to address any areas of care not presently covered by the federal Public Readiness and Emergency Preparedness Act (“PREP Act”). However, while the Safety Act provides almost certain immunity from ordinary negligence claims, the provisions of the Act that create a rebuttable presumption of assumption of the risk by way of a posted warning on the premises’ entrance could be considered an impermissible waiver under the Conditions of Participation for skilled nursing facilities.  While the risk of regulatory violation is low, the provisions of the Safety Act provide immunity even in the absence of signage, and the failure to provide the warning is not admissible in later litigation.

The Act, which passed on June 26, 2020, will go into effect on August 7, 2020 unless signed by Governor Kemp at an earlier time.