Coronavirus in Oklahoma: COVID-19 Product Protection Act provides tort immunity for PPE providers, others
by Paula Burkes
What is the COVID-19 Product Protection Act?
During the COVID-19 pandemic, companies and individuals have been ramping up production and efforts to help fight the spread of COVID-19, including increased production of personal protective equipment (PPE) and medical supplies, making and donating tests and medications, and donating products to help fight the spread of COVID-19.
On May 21, in an effort to protect these well-intentioned actors from civil litigation, Gov. Kevin Stitt signed into law the COVID-19 Product Protection Act. The act establishes liability relief for companies and individuals who are engaged in the manufacturing, distributing or donating of materials needed to fight the coronavirus pandemic. It creates immunity from civil litigation alleging personal injury, death or property damage caused by or resulting from the product’s manufacturing or design, or failure to provide proper instructions or sufficient warnings for actions arising on or after Gov. Stitt’s March 15 executive order.
To what companies or individuals does the new law apply?
The act applies to manufacturers, essential businesses and individuals engaged in the design, manufacturing, labeling, selling, distributing or donating of disinfecting and cleaning supplies or PPE in response to the COVID-19 public health emergency for those companies that do not typically do so in their normal course of business.
This liability relief also expands to protect government entities, health care facilities, health care providers and agents or employees of such businesses that use one of these products. Companies and individuals covered by the act include, but are not limited to, manufacturers of diagnostic testing increasing production to meet state needs; manufacturers supplying government-sanctioned treatments for COVID-19 patients; distilleries shifting operations to create hand sanitizer; and individuals making, donating or selling protective masks.
What is considered a “qualified product” under the act?
Qualified products include: medical devices, equipment or supplies used to treat COVID-19, including those that are used or modified for an unapproved use and those utilized outside such products normal use to treat or prevent the spread of COVID-19; medications used to treat COVID-19, including medications prescribed or dispensed for off-label use; and tests to diagnose or determine immunity to COVID-19.
Components of such qualified products are also covered under the act, which also protects those who design, manufacture, sell, distribute or donate “disinfecting and cleaning supplies,” which includes, but is not limited to, hand sanitizers, disinfectants, sprays and wipes; and “personal protective equipment” including coveralls, face shields, gloves, gowns, masks, respirators and other equipment designed to protect the wearer from the spread of infection or illness.
Are there any exceptions to the immunity granted under the act?
Yes. Immunity under the act doesn't apply to those bad actors who knew that a product was defective when put to the use for which it was provided, or for businesses that acted with a complete indifference to or conscious disregard of a substantial and unnecessary risk that the product would cause serious harm to others.
Paula Burkes, Business writer