Key Takeaways

• On April 1, 2020, NJ Executive Order No. 112 instituted measures to expand the state’s health care system’s capacity to address the anticipated increase of COVID-19 cases

• The order affords certain individuals and health care facilities, including long-term care facilities, immunity from civil liability in limited instances

• Immunity does not extend to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, or willful misconduct

On April 1, 2020, New Jersey Governor Phil D. Murphy implemented Executive Order No. 112 under which the state instituted measures to expand its health care system’s capacity to address the anticipated increase of COVID-19 cases in the immediate future. The Executive Order implemented procedures to:

1. Temporarily reactivate the licenses of recently retired New Jersey health care professionals
2. Temporarily authorize foreign doctors in good standing to practice in New Jersey
3. Facilitate appropriately-credentialed health care professionals to safely prescribe controlled dangerous substances to New Jersey residents, notwithstanding existing requirements that would delay or preclude such individuals from supporting the state’s response to the outbreak

Following New York Governor Andrew Cuomo’s Executive Order No. 202.10, which we covered previously, the New Jersey order affords certain individuals and health care facilities immunity from civil liability in limited instances. Unlike the New York order, the immunity granted in New Jersey applies to long-term care facilities. Regarding individuals, those granted temporary credentials to perform health care in connection with the state’s COVID-19 response are immunized from civil liability for acts or omissions undertaken in good faith, even if those acts or omissions are undertaken outside the scope of practice. Further, individuals credentialed to perform health care functions in New Jersey are immunized from civil liability for acts or omissions undertaken in good faith in the course of providing health care services in support of the state’s COVID-19 response. In both instances, the order affords no immunity for acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, or willful misconduct.

Regarding health care facilities, including long-term care facilities, the order affords immunity “from civil liability for any damages alleged to be have been sustained as a result of an act or omission undertaken in good faith in the course of providing services in support of the State’s COVID-19 response by one or more of its agents, officers, servants, representatives, or volunteers, if, and to the extent, such agent, officer employee, servant, representative or volunteer is immune from liability, whether or not such immunity is otherwise available under current law.” Such immunity from liability similarly does not extend to acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, or willful misconduct. The immunity afforded to health care facilities under Executive Order 112 appears to be instituted in conjunction with N.J.S.A. 26:13-19, which provides immunity to a person or private entity who owns, manages, or controls property that is used in connection with a public health emergency in certain, limited circumstances.

For more information regarding how this Executive Order will affect health care and long-term care facilities and individual providers, please contact:

• Caroline J. Berdzik
• Jonathan L. Berkowitz
• Or another member of the firm’s Health Care or Long-Term Care practices