SESSION OF 2020
SUPPLEMENTAL NOTE ON SENATE SUBSTITUTE FOR
HOUSE BILL NO. 2244
As Recommended by Senate Committee on
Judiciary
Brief*
Senate Sub. for HB 2244 would create the COVID-19
Response and Reopening for Business Liability Protection
Act (Act).
Definitions (Section 2)
The bill would define the following terms: “COVID-19,”
“COVID-19 claim,” “COVID-19 public health emergency,”
“disinfecting or cleaning supplies,” “healthcare provider,”
“person,” “personal protective equipment,” “premises,”
“premises owner,” “product liability claim,” “public health
guidance,” and “qualified product.”
Healthcare Provider Immunity (Section 3)
The bill would state, notwithstanding any other provision
of law, a healthcare provider is immune from civil liability for
damages, administrative fines, or penalties for acts,
omissions, healthcare decisions, or the rendering of or the
failure to render healthcare services, including services that
are altered, delayed, or withheld, as a direct response to any
COVID-19 state of disaster emergency under the Kansas
Emergency Management Act (KEMA).
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*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org
This immunity would apply to any claims for damages or
liability arising out of or relating to acts, omissions, or
healthcare decisions occurring during any state of disaster
emergency pursuant to KEMA, related to COVID-19.
This immunity would not apply to civil liability when it is
established that the act, omission, or healthcare decision
constituted gross negligence or willful, wanton, or reckless
conduct. This immunity also would not apply to healthcare
services not related to COVID-19 that have not been altered,
delayed, or withheld because of the COVID-19 public health
emergency.
Premises Owner Liability (Section 4)
The bill would state that, notwithstanding any other
provision of law, a premises owner shall not be liable for a
COVID-19 claim other than for damages for gross negligence
or willful, wanton, or reckless disregard of a substantial and
unnecessary risk that a person would be exposed to COVID-
19 on the premises. An act or omission directed,
recommended, or advised by public health guidance
applicable to the activity at issue at the time of the alleged
exposure would not constitute such gross negligence or
willful, wanton, or reckless conduct, unless the claimant
proves by clear and convincing evidence that a reasonably
prudent premises owner would have taken additional
precautions that would have prevented the alleged harm. The
provisions of this section would expire 90 days after the
termination of the COVID-19 public health emergency, unless
the Legislature re-enacts the provisions.
Business Liability (Section 5)
The bill would state that, notwithstanding any other
provision of law, a person (or agent of such person)
conducting business in Kansas shall not be held liable for a
COVID-19 claim if the act or omission alleged to violate a
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duty of care was mandated or specifically and affirmatively
permitted by a federal or state statute, regulation, or
executive order passed or issued in response to the COVID-
19 pandemic and applicable to the activity at issue at the time
of the alleged exposure.
Product Liability (Section 6)
The bill would state that, notwithstanding any other
provision of law, a person who designs, manufactures, sells,
distributes, provides, or donates a qualified product in
response to the COVID-19 public health emergency shall not
be liable in a civil action alleging a product liability claim
involving the product if any of the above actions were taken at
the specific request of or in response to a written order or
other directive finding a public need for a qualified product,
issued by the Governor, Adjutant General, or Division of
Emergency Management, and the damages are not
occasioned by willful, wanton, or reckless disregard of a
known, substantial, and unnecessary risk that the product
would cause serious injury to others.
Other Provisions (Sections 7, 8, and 9)
The bill would state that nothing in the Act creates,
recognizes, or ratifies a claim or cause of action of any kind;
eliminates a required element of any claim; affects workers’
compensation law, including the exclusive application of such
law; or amends, repeals, alters, or affects any other immunity
or limitation of liability.
The bill would state sections 4 through 7 would apply
retroactively to any cause of action accruing on or after March
12, 2020.
The bill would include a severability provision, stating if
any portion of the Act or application thereof to any person or
circumstance is held unconstitutional or invalid, such invalidity
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would not affect other portions that can be given effect
without the invalid portion or application, and such other
portions would remain valid and enforceable.
The bill would be in effect upon publication in the
Kansas Register.
Background
As passed by the House in 2019, HB 2244 would have
enacted “Claire and Lola’s Law,” regarding possession of
certain cannabidiol treatment preparations. Provisions based
on this language were enacted in 2019 SB 28.
On May 18, 2020, the Senate Committee on Judiciary
held an informational hearing on the topic of COVID-19
liability concerns and possible legislation. At the hearing, a
representative of the Kansas Medical Society (KMS) and
Kansas Hospital Association (KHA) presented draft legislation
addressing liability protections for healthcare providers, as
well as provisions from 2020 SB 493 regarding the Health
Care Stabilization Fund. A representative of the Kansas
Chamber of Commerce discussed draft legislation, later
provided to the Committee, regarding business liability
protections. A representative of the Kansas Livestock
Association expressed support for limiting liability for COVID-
19-related medical conditions within the agricultural industry.
A representative of the Kansas Trial Lawyers Association
stated the civil justice system works, even in times of crisis,
and special laws, exceptions, and immunities from negligence
are not needed to assure that justice prevails. A
representative of the Kansas Bar Association (KBA) stated
the KBA opposes blanket immunity for COVID-19-related
claims against business and healthcare institutions.
Representatives of the following organizations submitted
written-only testimony regarding the topic: AARP Kansas;
American College of Obstetricians and Gynecologists;
American Tort Reform Association; Cowley College; InterHab;
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Kansas Academy of Family Physicians; Kansas Advocates for
Better Care; Kansas AFL-CIO; Kansas Association of
Community College Trustees; Kansas Association of
Technical Colleges; LeadingAge Kansas; League of Kansas
Municipalities; National Federation of Independent Business;
and Working Kansas Alliance.
On May 20, 2020, the Senate Committee recommended
a substitute for HB 2244, replacing the language of the bill as
passed by the House with language based upon the draft bill
submitted by KMS and KHA, without the provisions regarding
the Health Care Stabilization Fund, and the draft bill
submitted by the Kansas Chamber of Commerce.
No fiscal note was available for the substitute bill at the
time of the Senate Committee action.
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Statutes affected: As introduced: 21-5706
As Amended by House Committee: 21-5706