Idaho Legislature passes bill shielding businesses, schools from coronavirus liability
On the third day of the Idaho Legislature’s special session, lawmakers kicked it off with discussion about businesses, schools and local entities not being held liable for coronavirus transmission — one of the issues that led Gov. Brad Little to call the extraordinary session.
They ended the day with legislation that will provide that protection — to the point that critics say it goes too far in shielding those whose negligence might lead to disaster, including long-term care facilities. Democrats were unanimous in their opposition to the measure.
Rep. Julianne Young, R-Blackfoot, pitched House Bill 6 — the Coronavirus Limited Immunity Act — to the House Judiciary, Rules and Administration Committee on Wednesday morning. It was forwarded by the panel on a party-line vote, and then it passed the House in a 54-15 vote, with one legislator absent.
The Senate passed the bill Wednesday night in a 27-7 vote, with one member absent.
The only Republicans voting against the bill in the House were Rep. Bryan Zollinger, R-Idaho Falls, and Rep. Fred Wood, R-Burley. Wood is a retired physician. No Republican senators voted against the bill.
A big sticking point for Democrats was that even if a business or school is negligent or grossly negligent regarding coronavirus exposure, they have no liability for damages or injury.
“I cannot in good conscious do that,” said Rep. Muffy Davis, D-Ketchum.
The bill outlines that if businesses, cities, counties, people or schools make an effort to avoid transmission and are not willfully or recklessly spreading the virus, they cannot be held liable.
Young said the bill is not intended to be an enforcement mechanism, but simply offers protection to those who are complying with public health orders and being cautious. She said it is not tied to any emergency declaration order.
The bill does not shield the state or federal government from any liability for decisions they make, Young said. It also does not shield public health districts from liability. Workers’ compensation laws also are not impacted by the bill.
“There is no nefarious purpose here,” Young said. “We are not attempting to shield state and federal government.”
Rep. John Gannon, D-Boise, took issue with county governments being offered immunity. He mentioned that county jury duty is mandatory, unlike a person voluntarily visiting a business.
Gannon also sought an analysis from the Idaho Attorney General’s Office on the bill, and shared that document. In it, Brian Kane, assistant chief deputy, expressed concern over undefined terms in the bill and said that the legislation “likely conflicts with existing statutes.”
The House committee voted 13-4 to move the bill forward, with all four Democrats voting against.
Later Wednesday on the House floor, several Democrats addressed their questions. Among complaints were a violation of citizens’ 7th Amendment right to file lawsuits based on disagreements between people or businesses, and the right to have that be decided by a jury in federal court.
Rep. Ilana Rubel, D-Boise, argued that Idaho already has robust laws for dismissing frivolous lawsuits.
“There’s been this perception that if we don’t act now … that there will be this tsunami of litigation that will wipe out businesses,” Rubel said. “I don’t think that’s true.”
Rubel said the bill “is using the heaviest hand of government to strip Idahoans of their right to redress for harm caused by even extreme negligence.”
Young argued that the threat of litigation, even if a lawsuit isn’t filed, is creating fear among business owners on whether to reopen.
“I don’t have qualms that would prevent me from feeling confident that we can move forward,” Young said.
Rep. Lauren Necochea, D-Boise, said she was concerned that business owners, especially those that host vulnerable populations, would become lax about virus prevention.
“Institutions can be sloppy under this bill and have immunity,” Necochea said. “We don’t do this for any other hospital-acquired infection.”
In the Senate Judiciary and Rules Committee on Wednesday night, Lupe Wissel, director of AARP Idaho, testified in opposition to the bill.
“Long-term care facilities should be liable for negligence,” said Wissel.
Wissel told senators that they cannot ignore that more than half of the deaths from COVID-19 are associated with long-term care homes. She went on to say that nursing home inspections and in-person visits have been suspended because of the virus, so there are “fewer eyes on what’s happening.”
Stephanie Persinger, on behalf of the Idaho long-term care ombudsman, also spoke in opposition. With family visits to facilities suspended, people “are living and dying in long-term care facilities with very little oversight,” she said.
Persinger noted that the only recourse families have for negligence is the judicial system. With long-term care facilities granted immunity, that recourse disappears.
Some lawmakers focused on the importance of opening schools, saying that provided them reason to support the legislation.
“School districts are very concerned about having some liability protection,” said Sen. Steven Thayn, R-Emmett. “... This idea of bringing something to provide liability protection for schools and businesses, I think is very critical at this time.”
Committee Chairman Sen. Todd Lakey, R-Nampa, talked about the ability of schools to open and also noted that the bill has a sunset clause, ending on July 1, 2021.
“This strikes the right balance for accountability,” Lakey said.
Only two members of the Senate Judiciary and Rules Committee voted against passing the bill: Grant Burgoyne, D-Boise, and Mark Nye, D-Pocatelo.
During argument on the Senate floor, multiple lawmakers addressed the AG office’s opinion on the bill. Sen. Michelle Stennett, D-Ketchum, noted that it could conflict with multiple existing Idaho statutes. She argued that the bill could provide immunity to businesses that are engaged in conduct that is already illegal.
“This bill can be harmful and this bill is definitely unconstitutional,” she said.
Lakey disagreed in his closing statement.
“I want to emphasize that this is about qualified immunity,” said Lakey. “Not blanket immunity.”
As of Wednesday night, 337 Idahoans had died as a result of the virus and 28,656 Idaho residents have been diagnosed with COVID-19.
Audience members and residents who came to testify were calmer on Wednesday. On Monday, residents broke a glass door to the House gallery and on Tuesday four people were arrested after Idaho State Police said they refused to comply with requests from lawmakers and troopers.
With the exception of Ammon Bundy, who was arrested again Wednesday and has been banned from the Statehouse for a year, none of the audience members appeared disruptive.
This story was originally published August 26, 2020 at 3:47 PM.
