Given the scale and intensity of the COVID-19 pandemic, it is not difficult to imagine the challenges healthcare providers face every day in working to treat those infected with the virus, while continuing to care for those with other medical conditions. In his most recent Executive Order, signed on April 14, Gov. Brian Kemp provides heightened legal protections to healthcare providers.
In response to the ongoing COVID-19 crisis, the governor declared a Public Health State of Emergency in Georgia on March 14 which he later renewed on April 8. Under Georgia Code Section 38-3-51, the General Assembly has enumerated the powers the governor has during a declared emergency. Specifically, the governor is vested with the power to, among other things:
- Compel health care facilities to provide services or the use of facilities if such services or use are reasonable and necessary for emergency response. O.C.G.A. § 38-3-51(d)(4.1)
- Suspend any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency if strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster O.C.G.A. § 38-3-51(d)(1)
- Perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population. O.C.G.A. § 38-3-51(c)(4)
Under the authority of Code Section 38-3-51, Governor Kemp issued Executive Order 03.20.20.02 on March 20, 2020 authorizing: telemedicine licenses to out-of-state physicians pursuant to the “Telemedicine licenses; out-of-state physicians” statute (O.C.G.A. § 43-34-31.1); temporary Georgia licenses to pharmacists who are currently licensed in good standing in another state; and regulatory agencies to relax many state health care facility regulatory requirements. Three days later, the Governor issued Executive Order 03.23.20.02, which allows unlicensed nursing school graduates and providers with lapsed or expired licenses from the past five years, to provide healthcare services to COVID-19 patients.
Utilizing his emergency powers, the governor issued Executive Orders 03.20.20.02 and 03.23.20.02 to ensure that Georgia has adequate providers to treat patients affected with COVID-19, as well as patients afflicted with other illnesses. Both Orders note that the availability of providers is critical for the State during the COVID-19 outbreak.
In Executive Order 04.14.20.01, Kemp provides additional support for the healthcare community and aims to encourage all able health trained individuals in Georgia to join the fight against COVID-19 through reducing legal exposure for both regularly practicing Georgia providers and recently authorized healthcare personnel. Notably, other states, including New York and Illinois, have similar executive orders in effect granting immunity to healthcare providers.
To facilitate additional legal protection for healthcare providers, Executive Order 04.14.20.01 deems all employees, staff, or contractors of “healthcare institutions” and “medical facilities” (as defined and regulated under O.C.G.A. § 31-7-1 et. seq.) as “auxiliary emergency management workers” for the Georgia government, pursuant to Georgia Code Section 38-3-35. Under the § 38-3-35, emergency management workers are immune from liability arising from actions related to performing emergency management activities, except in cases of willful misconduct, gross negligence, or bad faith.
- “Neither the state nor any political subdivision of the state nor, except in cases of willful misconduct, gross negligence, or bad faith, the employees, agents, or representatives of the state or any political subdivision thereof, nor any volunteer or auxiliary emergency management worker or member of any agency engaged in any emergency management activity complying with or reasonably attempting to comply with Articles 1 through 3 of this chapter; or any order, rule, or regulation promulgated pursuant to Articles 1 through 3 of this chapter, or pursuant to any ordinance relating to precautionary measures enacted by any political provisions of Articles 1 through 3 of this chapter, or pursuant to any ordinance relating to precautionary measures enacted by any political subdivision of the state shall be liable for the death of or the injury to person or for damage to property as a result of any such activity.” O.C.G.A.
Governor Kemp’s recent Order also declares that “services provided or performed by healthcare institutions and medical facilities as defined by Code Sections 31-7-1(4)(A), 31-7-1(4)(C)-(G), and 31-7¬1(5) shall be considered emergency management activities pursuant to Code Section 38-3-35.” In addition, the provisions of the Executive Order 04.14.20.01 shall become effective upon signature and shall expire at the conclusion of the Public Health State of Emergency declared
Accordingly, as designated auxiliary emergency management workers, covered Georgia healthcare providers who “reasonably attempt to comply” with the Executive Order 04.14.20.01 are immune from civil liability arising from performing emergency management activities during the COVID-19 pandemic.
Nevertheless, the brief and referential nature of Executive Order 04.14.20.01 leaves certain questions about who and what exactly qualifies for the protections uncertain. The Order appears to cover the majority of Georgia healthcare providers as the terms “healthcare institutions” and “medical facilities” are broadly defined under Georgia Code Section 31-7-1. However, as these statutory definitions have neither been extensively litigated nor examined, it is unclear whether all healthcare providers will fall within the scope of the immunity provided in the Executive Order 04.14.20.01. Further, as the immunity statute at issue, O.C.G.A. § 38-3-35, conditions its applicability on emergency management workers “reasonably attempting to comply” with the Emergency Management Order, what constitutes “reasonable” may be argued in future legal proceedings.
Regardless, healthcare providers working in Georgia unquestionably appreciate the governor’s actions taken in Executive Order 04.14.20.01 to provide one less point of anxiety while battling on the frontlines of the COVID-19 pandemic. In addition, all Georgia citizens will benefit from this reassurance to the brave individuals who are risking their lives to provide medical services in support of the State’s response to this crisis, and may be recently graduated, working out of state, out of retirement; away from home; and/or facing any number of other challenges.
John Hall is chairman of Hall Booth Smith and John Winkenwerder is an HBS associate attorney.