Governor Kay Ivey

MONTGOMERY-On Friday, May 8 Governor Ivey  issued two supplemental state of emergencies. Below is a statement from Governor Ivey.

“I want to do everything within my authority to protect businesses as Alabama’s economy gets up and running again. As we resume operations, the very last thing a business owner needs to worry about is a frivolous lawsuit from responding to COVID-19. Let me be clear, this in no way shields them from serious misconduct. If someone knowingly abuses the public during a time of crisis, they should be held accountable and prosecuted as such.”

A breakdown of the SOEs is below.

Eighth Supplemental Emergency Proclamation (Liability Protections)

• Like other governors, Governor Ivey is providing safe harbor to health care providers, businesses, and other entities to encourage the reopening of our State.
• These protections recognize that we need these groups not only to get Alabama up and running again, but also to do so in a way that promotes public health and safety. To provide two examples:
  • The order protects health care providers from a frivolous lawsuit based on actions they took or failed to take as a result of the COVID-19 pandemic.
  • The order protects businesses from frivolous lawsuits when they conduct COVID-19 testing or distribute PPE to help protect people from COVID-19.
• Importantly, the order in no way shields these groups from claims of egregious misconduct. Claims based on egregious misconduct would be allowed to proceed.
• The order is based on two aspects of the Emergency Management Act:
  • The Act itself grants immunity in certain instances where people or companies are trying to comply with the state’s emergency orders.
  • The Act also gives the governor power to take steps necessary to promote and secure the safety and protection of the public. Like the other governors who have extended these protections, Governor Ivey certainly believes that these reasonable, common-sense protections for these groups will promote the safety and security of the general public.

Ninth Supplemental Emergency Proclamation (Miscellaneous Provisions)

• One provision allows for probate judges to improve procedures for administering the July 14^th primary runoff election. For example, probate judges would be allowed to reduce the number of poll workers, if necessary. They would also be allowed to conduct poll-worker training remotely.
• Another provision cuts red tape for electric coops seeking to obtain emergency loans. This will help insure that electrical cops are still able to provide electricity to their members during this public health emergency.
• A final provision will extend the formal “public health emergency” for 60 days, beginning May 13.
  • This is separate from the public health orders issued by Dr. Harris. The existence of the SOE simply allows the governor to take extraordinary steps to deal with an emergency situation.
  • Extending a state of emergency is a routine action taken for emergencies that have extended effects. For example:
    • BP Oil Spill. Governor Riley proclaimed the state of emergency on April 30, 2010, and then he and Governor Bentley extended it 10 times for a total duration of almost 2 and a half years.
    • April 2011 Tornadoes. Governor Bentley proclaimed the state of emergency on April 27, 2011, and then extended it 5 times for a total duration of almost 10 months.

STATE OF ALABAMA

PROCLAMATION

BY THE GOVERNOR

WHEREAS, on March 13, 2020, I declared the existence of a state public health emergency based on the appearance of the 2019 novel coronavirus known as COVID-19 in the State of Alabama as the result of the national epidemic and international pandemic;

WHEREAS my March 13, 2020, proclamation included provisions designed to assist in the delivery of patient care should COVID-19 cases overwhelm health care providers in Alabama;

WHEREAS my March 13, 2020, proclamation included certain liability protections for health care facilities, health care professionals, and allied professions and occupations providing services in response to this pandemic pursuant to the Alabama Emergency Management Act of 1955, as amended, see Ala. Code S 31-9-16;

WHEREAS the health threat posed by COVID-19 is severe and potentially lethal to many citizens of Alabama;

WHEREAS, in accordance with Ala. Code S 31-9-6 and S 31-9-8, I have concluded that it is necessary to promote and secure the safety and protection of the civilian population by ensuring that Alabama’s health care providers have adequate protections and our health care system has adequate capacity to provide health care for the people of this State;

VVHEREAS I have also issued supplemental proclamations to further address the occurrence of COVID-19 and its consequences in the State of Alabama and its threats to, and adverse impacts on, public health, safety, welfare, and economic security;

WHEREAS the Centers for Disease Control and Prevention (“CDC”) has recommended safety practices, including social distancing and avoiding group gatherings;

WHEREAS the Alabama State Health Officer, on March 17, 2020, issued an order suspending public gatherings due to risk of infection by COVID-19, which has been amended and which continues to be amended, and which has been supplemented by informal “guidelines” for various activities and establishments;

VVHEREAS the various practices put into place to slow the spread of COVID-19 have been helpful from a public health perspective, but they have also required the closure of numerous businesses and resulted in damage to the economy of the State and the Nation and caused economic hardship to working people and their families;

WHEREAS studies have shown that mortality rates increase significantly during periods of high unemployment;

WHEREAS encouraging businesses to reopen in a responsible manner will both improve public health and preserve the economic well-being of the citizens of Alabama by reducing unemployment and raising wages;

WHEREAS, after consulting with the President of the United States, I determi_ned that businesses should begin to reopen in May 2020 while following applicable public health guidance to protect employees, customers, and members of the public;

WHEREAS, on April 28, 2020, the Alabama State Health Officer, with my support, issued an order to begin the process of allowing businesses and the economy in Alabama to reopen consistent with preserving frie public health;

WHEREAS many aspects of this public health emergency remain uncertain and new i_mpacts and repercussions of COVID-19 are continually coming to light and thus require flexibility and adaptability by all levels of government;

WHEREAS, as a result of ffis continuing uncertainty, businesses have been reluctant to reopen— or, where partially open, to fully reopen— for fear of lawsuits and the risk of the associated expense and liability;

WHEREAS my office has worked with representatives of business and industry to obtain ilformation on concerns and challenges associated with re-starting the economy of this State; and

WHEREAS my office has also worked with representatives of Alabarna frial attorneys to obtain irfformation on concerns and challenges faced by people who have been, or who may be, harmed in the course of the re-opening process;

NOW THEREFORE, I, Kay Ivey, Governor of the State of Alabama, pursuant to the relevant provisions of the Alabama Emergency Management Act of 1955, as amended, Ala. Code SS 31-9-1, et seq. (herei_nafter, the ” Alabama Emergency Management Act”), do hereby proclaim the existence of conditions that warrant implementation of additional extraordinary measures and relief during the state health emergency now in effect in order to guard public health and protect human life. I therefore proclaim and direct all of the following:

1. Liability protections for businesses and health care providers
2. I further find and declare that to preserve the lives and property of the people of this State it is necessary:
   1. That businesses remain open and reopen i_n a manner consistent with applicable public health guidance and they are hereby authorized to do so;
   2. That COVID-19 cases have put, and will continue to put, a significant sfrain on the health care facilities, health care providers, and health care resources of this State and that COVID-19 cases have undermined, and will continue to undermine, the ability to deliver patient care or obtain certain equipment or materials in the traditional, normal, or customary manner;
   3. That COVID-19 has affected, and will continue to affect, our health care system in unique and potentially devastating ways, and our health care facilities, health care professionals, and their supporting workers need protection to respond to this pandemic and to do what they can do to continue to provide freatrnent and services for the people of Alabama;
   4. That any university or public insfitution of higher education in the State of Alabama is hereby authorized, during the time period covered by the public health emergency declared on March 13, 2020, to design, manufacture, and distribute any PPE for use by healthcare providers and others in order to alleviate the shortage of PPE resulting from the COVID19 pandemic;
   5. That likewise, such institutions are authorized to design, manufacture, and distribute COVID-19 testing materials, provided they do so under the

direction of the Alabama Departrnent of Public Health and in accordance with that Departnent’s specifications;

6. That reasonable protections from the risk and expense of lawsuits, be provided to businesses and health _care providers that comply with or reasonably attempt to comply with applicable public health guidance will encourage businesses to re-open and repair the darnaoe to the economy of the State and the tax revenues of the State and of local governments; and
7. That providing such a safe harbor to businesses and healthcare providers that operate reasonably consistent with applicable public health guidance vvill help ameliorate the social harms of a closed economy and the spread of COVID-19.

1. For purposes of this supplemental proclamation, the following terms shall have the following meanings:
   1. ” Applicable public health guidance” means any emergency proclarnation or order issued by the Governor of Alabama, or any order or guidelines document issued by the Alabama State Health Officer, concerning the proper means of preventing the spread of COVID-19.
   2. “Business, health care provider, or other covered entity” means an individual, partnership, association, corporation, health care provider, other business entity or organization, or any agency or instrumentality of the State of Alabama, including any university or public institution of higher education in the State of Alabama, whether any such individual or entity is for profit or not for profit, including its directors, officers, trustees, managers, members, employees, volunteers, and agents.
   3. “COVID-19” means the COVID-19 virus and any mutations thereof.
   4. “Covered COVID-19 response activity” means any or all of the following activities by a business, health care provider or other covered entity:
      1. Any testing, distribution of testi_ng materials, monitoring, collecting, reporting, fracking, tracing, investigating, or disclosing exposures or other irformation in connection with COVID-19 during the ongoing state of emergency;
      2. Any performance or provision of health care sewices or freatrnent by a health care provider that resulted from, was negatively affected by, was negatively impacted by a lack of resources caused by, or was done in response to the COVID-19 pandemic or the State’s response thereto;
      3. Any design, manufacture, disfribution, allowance, use, or non-use of precautionary equipment or supplies such as PPE in connection with COVID-19 duri_ng the ongoing state of emergency;
      4. Any design or manufacture of testing materials done under the direction of ADPH and in accordance with ADPH’s specifications.
   5. “COVID-19 transmission” means any actual, alleged, or feared exposure to or confraction of a COVID-19 infection while a business, health care provider or other covered entity is engaged in any business activity, whether on the premises of the business, health care provider, or other covered entity or otherwise during the ongoing state of emergency.
   6. “COVID-19 testing materials” means materials necessary for the collecting, handling, fransporting, and testing of clinical specimens from persons for COVID-19.
   7. “Health care services or treatment” means those services and freahnent defined by Alabama law and Alabama Code SS 6-5-540 et seq.
   8. “Health care provider” means any health care facility, professional, or person as defined in the Alabama Code and includes, but is not limited to:
      1. Any health care provider as that term is defined i_n Alabama Code S 6-5-542(1) or any of the providers defined in S 6-5481(1)-(8);
      2. Any health care facility licensed or approved in the State of Alabama, including, but not limited to, any facility licensed or approved by the Alabama Departrnent of Public Health or mental health facility certified by the Alabama Department of Mental Health, including any health care facility or pharm_acy operati_ng and providing services pursuant to the provisions outlined in my Emergency Executive Order dated April 2, 2020 and any support personnel of such facility or pharmacy;
      3. Any medical or health care professional, individual or entity, holding a license, registration, permit, certification, or approval (including a temporary emergency license, registration, permit, certification, or approval) to practice a health care profession or occupation in Alabama, including under the Public Readiness and Emergency Preparedness Act and any declaration of the Department of Healffl and Human Services in accordance with that Act, under any of my COVID-19-related emergency proclamations, under any rule or regulation promulgated by a licensing board or agency pursuant to such emergency proclamations, or otherwise in response to the COVID-19 pandemic and including any support personnel of any such individual or entity.
   9. “PPE” means personal protective equipment.
   10. “Serious physical injury” means a death or an injury that requires either in-patient hospitalization of at least 48 hours, permanent impairment of a bodily function, or permanent damage to a body structure.
2. Emergency protections.
3. Liability protections. A business, health care provider, or other covered entity shall not be liable for the death or injury to persons or for damage to property in any way arising from any act or omission related to, or in connection with, COVID-19 transn-üssion or a covered COVID-19 response activity, unless a claimant shows by clear and convincing evidence that the claimant’s alleged death, injury, or damage was caused by the business, health care provider, or other covered entity’s wanton, reckless, willful, or intentional misconduct.
   2. Limitations on damages. In those i_nstances where liability is established under Section I.C.I and the acts or omissions do not result in serious physical injury, a business, health care provider, or other covered entity’s liability shall be limited to actual economic compensatory damages, and in no event shall the business, health care provider, or other covered entity be liable for non-economic or punitive damages. A party asserting a wrongful death claim under Section I.C.I is only entitled to an award of punitive damages.
   3. Accrued causes of action. For any cause of action relating to COVID-19 transmission or a covered COVID-19 response activity where the cause of action accrued before the issuance of this proclamation and for which a court holds that the provisions of Section I.C.I and I.C.2 do not apply, the following shall apply:
      1. Standard of Care. As a matter of law, a business, health care provider, or other covered entity shall not be liable for negligence, premises liability, or for any non-wanton, non-willful, or nonintentional civil cause of action with respect to any individual or entity relating to or in connection with COVID-19 transmission or a_ny covered COVID-19 response activity unless the claimant proves by clear and convincing evidence that the business, health care provider, or other covered entity did not reasonably attempt to comply with the then applicable public health guidance.
      2. Adjustment of remedies. Notwithstanding any other provision of law, a business, health care provider, or other covered entity shall not be liable for damages from mental anguish or emotional distess or for punitive damages but could be liable for economic compensatory damages in a cause of action that does not involve serious physical injury. This subsection shall not prohibit the awarding of punitive damages for %mongful death claims, but no other damages shall be allowed for such claims.
   4. Preservation of existing defenses.
      1. General preservation of existing defenses. Nothing in this proclamation shall be consfrued to preempt, remove, displace, repeal, or limit in any way any defense or right that exists under law that would be applicable to any business, health care provider, or other covered entity sued after the effective date of this proclamation. The immunity provided by this proclamation is in addition to and cumulative of other defenses and rights that exist under law.
      2. Specific preservation of previous proclamations concerning health care providers. If the liability protections contained in this proclamation are adjudged not to cover a health care provider for any reason, then nothing in this proclamation shall be consffued to limit, impair, or supersede my proclarnation dated March 13, 2020, or any other State law presently governing legal standards or procedures, including judicial decisional law, in any civil acfion against a health care provider. In addifion, for cases where the health care services or freafrnent provided by the health care provider do not result from or are not affected by the COVID-19 pandemic or do not result from, are not affected by, or are not in support of the State’s response to the COVID-19 pandemic, my previous emergency proclamations and existing Alabama law and standards shall govern the action as outlined in Alabama Code SS 6-5-540 et seq.
   5. General provisions.
      1. No effect on existing benefits. Nothing in this proclamation shall be construed to affect the right of any person to receive benefits to which he or she would otherwise be entitled under the Alabama Emergency Management Act or the Workers’ Compensation Act.
      2. Notwithstanding any other provision of law, the provisions of this proclamation shall be construed in pari materia Wiffl the Alabama Emergency Management Act and with any subsequently enacted law granting protections from lawsuits to covered entities.
      3. The provisions of this proclamation are severable. If any provision of this proclamation is declared invalid or unconstitutional, its remaining provisions shall continue in effect. Without limiting the generality of the foregoing, if a court holds that the standard of care in Section I.C.I (wanton, reckless, willful, or intentional misconduct) is invalid, the following shall apply in place of that standard of care: (1) failure to comply with or reasonably attempt to comply with applicable public health guidance; or (2) willful misconduct, gross negligence, or bad faith.
      4. The provisions of this proclamation shall become effective upon my signature and its filing with the Secretary of State and shall be retroactive and effective for acts or omissions occurring from March 13, 2020, until the State COVID-19 public health emergency is terminated.

FURTHER, the provisions of this proclamation shall have the full force and effect of law, and all inconsistent laws, or any provisions thereof, are hereby suspended.

IN WITNESS, WHEREOF, 1 have hereunto set my hand and caused the Great Seal to be affixed by the Secretary of State at the State Capitol in the City of Montgomery on this 8th day of May, 2020.

Kay Ivey Governor

STATE OF ALABAMA

PROCLAMATION

BY THE GOVERNOR

WHEREAS, on March 13, 2020, I declared the existence of a state public health emergency based on the appearance of the 2019 novel coronavirus known as COVID-19 in the State of Alabama;

WHEREAS that initial proclamation included provisions designed to assist in preventing the spread of COVID-19 and in mitigating the consequences of COVID-19;

WHEREAS, on March 18, 20, 23, and 26 and April 2, 3, and 13 of 2020, 1 issued supplemental proclamations to further address the occurrence of COVID-19 in the State of Alabama; and

WHEREAS new implications of COVID-19 come to light on a continual basis, requiring flexibility and adaptability by all levels of government within the State of Alabama;

NOW THEREFORE, I, Kay Ivey, Governor of the State of Alabama, pursuant to the relevant provisions of the Alabama Emergency Management Act of 1955, as amended, Ala. Code SS 31-9-1, et seq., do hereby proclaim the existence of conditions that warrant implementation of additional extraordinary measures and relief during the state public health emergency now in effect in order to guard public health and protect human life. I therefore proclaim and direct all of the following:

1. Rural Electric Cooperatives

I find that the State’s electric cooperatives provide essential services that are necessary to protect the safety and security of the citizens of Alabama. To continue providing those services during the COVID-19 pandemic, the cooperatives may need access to working capital and operating loans and lines of credit financing, including access to emergency loans. Therefore, the procedural requirements of Ala. Code Sections 41-4-16, 37-6-2, and 37-7-12 and Ala. Admin. Code rule 355-2-1-.02 relating to publication of notice in newspapers, the holding of public hearings, and the filing of a petition with the Department of Finance five days before a public hearing are hereby suspended for the duration of this order. All other requirements of these laws remain in full force and effect, including the requirement to obtain the consent of the Finance Director before incurring debt, except that, in the case of an emergency loan from a government agency which was approved by that agency after April 3, 2020 and made before the effective date of this order, the electric cooperative shall have the ability to obtain the Department’s ratifying consent to such debt as long as the petition is filed within ten days of the date of this order.

Il. Administration of the July 14, 2020 Runoff Election

I find that the government response to COVID-19 requires a careful balance between concerns for the public health and safety, for the administration of the July 14, 2020 Runoff Election that best meets the needs of Alabama’s counties, and for the right of the public to exercise the right to vote. To that end:

1. Notwithstanding the provisions of Ala. Code S 17-13-3, or any offLer law to the confrary, and only for the July 14, 2020 Primary Runoff Election, a judge of probate may determine if fewer precinct election officials or poll workers than the total number of election officials or poll workers who worked the primary election are necessary to conduct the election. If fewer workers are necessary, the judge of probate may conduct the election with the total number of workers he or she deems necessary to conduct the election.
2. Notwithstanding the provisions of Ala. Code S 17-8-9, or any other law to the contrary, and only for the July 14, 2020 Prirnary Runoff Election, a judge of probate may conduct a school of instruction for precinct election officials or poll workers via online video or recorded telephone call.
3. For the July 14, 2020 Primary Runoff Election, all precinct election officials or poll workers shall be entitled to all compensation provided for at Ala. Code S 17-8-12. All judges of probate shall ensure that all precinct election officials or poll workers are adequately prepared to conduct the election.
4. Any expenses and costs incurred by a county, and due to the above, shall be reimbursed in accordance with Ala. Code S 17-16-1, et seq..

Ill. Protection Against Evictions

My supplemental emergency proclamation issued April 3, 2020, is hereby amended to specify that the protection against evictions applies only to evictions based on nonpayment. Specifically, the relevant section of that supplemental proclamation is amended to read as follows:

Because COVID-19 mitigation efforts require people to remain at their place of residence, I find that it would promote the safety and protection of the civilian population to grant temporary relief from residential evictions and foreclosures due to nonpayment. To that end: All state, county, and local law enforcement officers are hereby directed to cease enforcement of any order that would result in the displacement of a person from his or her place of residence for reasons related to the nonpayment of their lease, mortgage, or other payment obligation. Nothing in this section shall be construed as relieving any individual of the obligation to pay rent, to make mortgage payments, or to comply with any other obligation that an individual may have under a rental agreement or mortgage.

1. Extension of Emergency

Pursuant to Ala. Code S 31-9-8, a State of Emergency proclaination expires sixty days from the issuance of such proclarnation unless extended by proclamation of the Governor. Due to the continuing impact of the 2019 novel coronavirus known as COVID19 on the State of Alabama, the conditions of disaster and extreme peril to the safety of persons and property within the State of Alabama continue to exist. Therefore, I hereby extend the State of Emergency issued on March 13, 2020, for another sixty days unless sooner terminated.

FURTHER, to the extent a provision in this supplemental proclamation conflicts with any provision of state law, that law is hereby suspended for the duration of this state of emergency, and this proclamation shall confrol.

FURTHER, I declare that this proclamation and all subsequent orders, laws, rules, or regulations issued pursuant hereto shall remain in full force and effect for the duration of the public health emergency unless rescinded or extended by proclamation.

IN WITNESS, WHEREOF, 1 have hereunto set my hand and caused the Great Seal to be affixed by the Secretary of State at the State Capitol in the City of Montgomery on this 8th day of May, 2020.

Kay Ivey Governor

Media Release/Office of Governor Kay Ivey/Gina Maiola/Press Secretary