On April 14, 2020, Georgia Governor Brian Kemp issued an Executive Order providing “immunity” to certain healthcare workers in the long-term care field (“the Order”). The Order also classified these people as “auxiliary emergency management workers”. This “immunity” lasts for as long as the State Emergency brought on by the COVID-19 pandemic lasts. As Georgia begins the process of re-opening, the immunity provided by the Order will eventually expire. It certainly will not go on indefinitely.

1. What does this mean for nursing homes, assisted-living facilities, personal care homes, or other long-term facilities? On its face, the impact of the Order would seem to be simple: immunity means immunity. In practice however, that may not prove to be the case. If a facility still has COVID-19 infected residents at the time this immunity expires, how will that situation be handled going forward? What will happen if a new resident is asymptomatic at the time of admission, but develops symptoms after residing in the facility for ten (10) days or so? Below, we first highlight sections of the Order, and then offer practical suggestions for the future. On March 14, 2020, Governor Kemp declared a Public Health State of Emergency under O.C.G.A. § 38-5-51. Pursuant to that statute, the Governor is given wide latitude to issue orders in the event of actual or impending . . . pandemic influenza emergency . . . or a public health emergency. The state of emergency continues until the Governor finds the threat of danger has passed or has been neutralized, such that the danger no longer exists. (The initial State of Emergency was to last 30 days, but Governor Kemp has now renewed the emergency status through June 12, 2020.)
2. Governor Kemp relied upon the same statute, O.C.G.A. § 38-5-51, as authority to issue the Order. This statute gives the Governor additional powers, including issuing orders deemed necessary to “promote and secure the safety and protection of the civilian population.” He also may suspend regulatory statutes, procedures, orders, rules, regulations, etc., if those statutory schemes would in any way “prevent, hinder, or delay necessary action in coping with the emergency or disaster”.
3. Under these powers, Governor Kemp has deemed certain healthcare workers to be “auxiliary emergency management workers”, and thus “immune” from liability for personal injuries or property damages. These emergency management workers enjoy this immunity so long as those services are provided or performed during the Public Health State of Emergency. O.C.G.A. § 38-3-35(a); Exe. Order. 4.14.20.01
4. The Executive Order makes clear that employees, staff and contractors of nursing homes and personal care homes (as well, of course, as hospitals, surgery centers and the like) are covered by the Order. O.C.G.A. § 31-7-1 (4) (A).
5. Given the broad definition of functioning as “emergency management workers,” we interpret these provisions to protect all staff, employees and contractual workers in a nursing home or ALF/PCH, whether said staff members are or are not actively caring specifically for a person with suspected or diagnosed COVID-19. For example, immunity should cover all staff in the nursing home during the State of Emergency. Pursuant to Georgia law, these emergency medical services include “all other activities necessary or incidental to the preparation for and carrying out” of emergency functions. O.C.G.A. § 38-3-3(2).
6. The Order declares that all services provided or performed by healthcare institutions and medical facilities during the State of Emergency are to be considered emergency management activities. Governor Kemp’s Order is not expressly limited to COVID-19-related medical services. (Despite the broad scope of authority granted by O.C.G.A. § 38-5-51, we anticipate that the Order will be challenged on this basis.)
7. The immunity does not protect against willful misconduct, gross negligence or bad faith. O.C.G.A. § 38-3-35 (b).

We have looked to other state jurisdictions for potential guidance, and it seems that we are all in the same position: no one is certain what the Orders will mean. In fact, many states have similar executive orders providing immunity, but others curiously do not. (At the time of this posting, both Florida and California have immunity proposals for consideration, but nothing has yet been ordered.)

There is a federal counterpart, the Public Readiness and Emergency Preparedness Act (PREP).[1] While initially designed to protect vaccine manufacturers, the Act was extended by Declaration on March 10, 2020 to provide immunity to healthcare workers. The Declaration speaks in defined terms. A healthcare worker must fit the definition of “covered persons” in the performance of “recommended activities” with respect to “covered countermeasures.” Accordingly, one would expect debate over the application of these defined terms. Governor Kemp’s Order is not nearly as complicated and is much more broad in scope.

We have also looked to other areas of Georgia law for parallels regarding immunity that is “temporary” in duration. We find several statutes offering limited protection to Good Samaritans[2], emergency management[3], law enforcement[4], firefighters[5], 911 operators[6], and emergency care providers[7]. However, nothing approaches the scope of our present situation, as this pandemic is unprecedented. Moreover, Governor Kemp’s Order is much broader in scope than any of these limited immunity statutes. In fact, the Order apparently provides immunity for any act or omission in a long-term care setting during the State of Emergency, whether related to COVID-19 or not.

Governor Kemp’s Executive Order limits the civil liability of auxiliary emergency management workers engaging in emergency management activities while providing patient care if such care results in the death or injury of a patient. We anticipate that the plaintiff’s bar will challenge the Order. We believe that it will be up to appellate courts to decide both the enforceability of this Order and its scope. Facilities should assume that they will need to defend lawsuits in spite of this immunity.

How does a facility help itself in this type of climate? The answer should not surprise you: documentation. The records that you create now will tell the story of your experience if it is scrutinized in a future lawsuit.

Long-term care facilities must already manage regulatory requirements from CMS as well as federal and state agencies. New regulations must now be absorbed, implemented, and then communicated to the staff, the residents, and to family members. Documentation has always been used to establish that specific care was provided. Now, it will also confirm that regulatory compliance was met during the pandemic brought on by COVID-19, as well as assist in the defense of any lawsuits which may arise.

What should be documented in response to the changes brought about by the coronavirus? Here are our thoughts and suggestions. Long-term care facilities should create a record of the following items:

1. Changes made to the facility floor plan;
2. Timely compliance with new or revised regulations;
3. Changes to facility practices and procedures in reaction to the pandemic;
4. The sharing of information with residents and family members;
5. The challenges faced in response to COVID-19, including lack of PPE, staff, and how the facility responded to this;
6. Dialogue with local, state and federal departments or agencies;
7. Unique costs incurred in responding to COVID-19;
8.  Inventories of available PPE on site;
9. Records of purchases, as well as orders for more needed supplies;
10. Proof of screening for symptoms;
11. Facility use of separate areas for negatives, positives, and “unknown” residents (in quarantine, of course); and
12. Any communications received from family members who compliment the steps undertaken in reaction to this unique emergency.

This information will demonstrate your efforts and reactions to the pandemic and help support an experiential narrative of your facility.

Many of these areas of documentation will be familiar, as OSHA already requires some through its interim enforcement response plan for coronavirus disease. This information should serve you well in the event of a lawsuit focused on your facility’s responses and reactions to the COVID-19 pandemic.