HEN20806 NTW 116TH CONGRESS 2D SESSION S.L.C. S. ll To lessen the burdens on interstate commerce by discouraging insubstantial lawsuits relating to COVID–19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief. IN THE SENATE OF THE UNITED STATES llllllllll Mr. CORNYN (for himself and Mr. MCCONNELL) introduced the following bill; which was read twice and referred to the Committee on llllllllll A BILL To lessen the burdens on interstate commerce by discouraging insubstantial lawsuits relating to COVID–19 while preserving the ability of individuals and businesses that have suffered real injury to obtain complete relief. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 4 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) SHORT TITLE.—This Act may be cited as the 5 ‘‘Safeguarding America’s Frontline Employees To Offer 6 Work Opportunities Required to Kickstart the Economy 7 Act’’ or the ‘‘SAFE TO WORK Act’’. HEN20806 NTW S.L.C. 2 1 (b) TABLE OF CONTENTS.—The table of contents for 2 this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Findings and purposes. Sec. 3. Definitions. TITLE I—LIABILITY RELIEF Subtitle A—Liability Limitations for Individuals and Entities Engaged in Businesses, Services, Activities, or Accommodations Sec. 121. Application of subtitle. Sec. 122. Liability; safe harbor. Subtitle B—Liability Limitations for Health Care Providers Sec. 141. Application of subtitle. Sec. 142. Liability for health care professionals and health care facilities during coronavirus public health emergency. Subtitle C—Substantive and Procedural Provisions for Coronavirus-related Actions Generally Sec. Sec. Sec. Sec. 161. 162. 163. 164. Jurisdiction. Limitations on suits. Procedures for suit in district courts of the united states. Demand letters; cause of action. Subtitle D—Relation to Labor and Employment Laws Sec. Sec. Sec. Sec. 181. 182. 183. 184. Limitation on violations under specific laws. Liability for conducting testing at workplace. Joint employment and independent contracting. Exclusion of certain notification requirements as a result of the COVID–19 public health emergency. TITLE II—PRODUCTS Sec. 201. Applicability of the targeted liability protections for pandemic and epidemic products and security countermeasures with respect to covid–19. TITLE III—GENERAL PROVISIONS Sec. 301. Severability. 3 4 SEC. 2. FINDINGS AND PURPOSES. (a) FINDINGS.—Congress finds the following: 5 (1) The SARS–CoV–2 virus that originated in 6 China and causes the disease COVID–19 has caused HEN20806 NTW S.L.C. 3 1 untold misery and devastation throughout the world, 2 including in the United States. 3 (2) For months, frontline health care workers 4 and health care facilities have fought the virus with 5 courage and resolve. They did so at first with very 6 little information about how to treat the virus and 7 developed strategies to save lives of the people of the 8 United States in real time. They risked their per- 9 sonal health and wellbeing to protect and treat their 10 patients. 11 (3) Businesses in the United States kicked into 12 action to produce and procure personal protective 13 equipment, such as masks, gloves, face shields, and 14 hand sanitizer, and other necessary medical supplies, 15 such as ventilators, at unprecedented rates. 16 (4) To halt the spread of the disease, State and 17 local governments took drastic measures. They shut 18 down small and large businesses, schools, colleges 19 and universities, religious, philanthropic and other 20 nonprofit institutions, and local government agen- 21 cies. They ordered people to remain in their homes. 22 (5) This standstill was needed to slow the 23 spread of the virus. But it devastated the economy 24 of the United States. The sum of hundreds of local- 25 level and State-level decisions to close nearly every HEN20806 NTW S.L.C. 4 1 space in which people might gather brought inter- 2 state commerce nearly to a halt. 3 (6) This halt led to the loss of millions of jobs. 4 These lost jobs were not a natural consequence of 5 the economic environment, but rather the result of 6 a drastic, though temporary, response to the unprec- 7 edented nature of this global pandemic. 8 (7) Congress passed a series of statutes to ad- 9 dress the health care and economic crises—the 10 Coronavirus Preparedness and Response Supple- 11 mental Appropriations Act, 2020 (Public Law 116– 12 123; 134 Stat. 146), the Families First Coronavirus 13 Response Act (Public Law 116–127; 134 Stat. 178), 14 the Coronavirus Aid, Relief, and Economic Security 15 Act or the CARES Act (Public Law 116–136), and 16 the Paycheck Protection Program and Health Care 17 Enhancement Act (Public Law 116–139; 134 Stat. 18 620). In these laws Congress exercised its power 19 under the Commerce and Spending Clauses of the 20 Constitution of the United States to direct trillions 21 of taxpayer dollars toward efforts to aid workers, 22 businesses, State and local governments, health care 23 workers, and patients. 24 (8) This legislation provided short-term insula- 25 tion from the worst of the economic storm, but these HEN20806 NTW S.L.C. 5 1 laws alone cannot protect the United States from 2 further devastation. Only reopening the economy so 3 that workers can get back to work and students can 4 get back to school can accomplish that goal. 5 (9) The Constitution of the United States spe- 6 cifically enumerates the legislative powers of Con- 7 gress. One of those powers is the regulation of inter- 8 state commerce. The Government is not a substitute 9 for the economy, but it has the authority and the 10 duty to act when interstate commerce is threatened 11 and damaged. As applied to the present crisis, Con- 12 gress can deploy its power over interstate commerce 13 to promote a prudent reopening of businesses and 14 other organizations that serve as the foundation and 15 backbone of the national economy and of commerce 16 among the States. These include small and large 17 businesses, schools (which are substantial employers 18 in their own right and provide necessary services to 19 enable parents and other caregivers to return to 20 work), colleges and universities (which are substan- 21 tial employers and supply the interstate market for 22 higher-education services), religious, philanthropic 23 and other nonprofit institutions (which are substan- 24 tial employers and provide necessary services to their 25 communities), and local government agencies. HEN20806 NTW S.L.C. 6 1 (10) Congress must also ensure that the Na- 2 tion’s health care workers and health care facilities 3 are able to act fully to defeat the virus. 4 (11) Congress must also safeguard its invest- 5 ment of taxpayer dollars under the CARES Act and 6 other coronavirus legislation. Congress must ensure 7 that those funds are used to help businesses and 8 workers survive and recover from the economic cri- 9 sis, and to help health care workers and health care 10 facilities defeat the virus. CARES Act funds cannot 11 be diverted from these important purposes to line 12 the pockets of the trial bar. 13 (12) One of the chief impediments to the con- 14 tinued flow of interstate commerce as this public- 15 health crisis has unfolded is the risk of litigation. 16 Small and large businesses, schools, colleges and 17 universities, religious, philanthropic and other non- 18 profit institutions, and local government agencies 19 confront the risk of a tidal wave of lawsuits accusing 20 them of exposing employees, customers, students, 21 and worshipers to coronavirus. Health care workers 22 face the threat of lawsuits arising from their efforts 23 to fight the virus. 24 (13) They confront this litigation risk even as 25 they work tirelessly to comply with the coronavirus HEN20806 NTW S.L.C. 7 1 guidance, rules, and regulations issued by local gov- 2 ernments, State governments, and the Federal Gov- 3 ernment. They confront this risk notwithstanding 4 equipment and staffing shortages. And they confront 5 this risk while also grappling with constantly chang- 6 ing information on how best to protect employees, 7 customers, students, and worshipers from the virus, 8 and how best to treat it. 9 (14) These lawsuits pose a substantial risk to 10 interstate commerce because they threaten to keep 11 small and large businesses, schools, colleges and uni- 12 versities, religious, philanthropic and other nonprofit 13 institutions, and local government agencies from re- 14 opening for fear of expensive litigation that might 15 prove to be meritless. These lawsuits further threat- 16 en to undermine the Nation’s fight against the virus 17 by exposing our health care workers and health care 18 facilities to liability for difficult medical decisions 19 they have made under trying and uncertain cir- 20 cumstances. 21 (15) These lawsuits also risk diverting taxpayer 22 money provided under the CARES Act and other 23 coronavirus legislation from its intended purposes to 24 the pockets of opportunistic trial lawyers. HEN20806 NTW S.L.C. 8 1 (16) This risk is not purely local. It is nec- 2 essarily national in scale. A patchwork of local and 3 State rules governing liability in coronavirus-related 4 lawsuits creates tremendous unpredictability for ev- 5 eryone participating in interstate commerce and acts 6 as a significant drag on national recovery. The ag- 7 gregation of each individual potential liability risk 8 poses a substantial and unprecedented threat to 9 interstate commerce. 10 (17) The accumulated economic risks for these 11 potential defendants directly and substantially af- 12 fects interstate commerce. Individuals and entities 13 potentially subject to coronavirus-related liability will 14 structure their decisionmaking to avoid that liability. 15 Small and large businesses, schools, colleges and 16 universities, religious, philanthropic and other non- 17 profit institutions, and local government agencies 18 may decline to reopen because of the risk of litiga- 19 tion. They may limit their output or engagement 20 with customers and communities to avoid the risk of 21 litigation. These individual economic decisions sub- 22 stantially affect interstate commerce because, as a 23 whole, they will prevent the free and fair exchange 24 of goods and services across State lines. Such eco- 25 nomic activity that, individually and in the aggre- HEN20806 NTW S.L.C. 9 1 gate, substantially affects interstate commerce is 2 precisely the sort of conduct that should be subject 3 to congressional regulation. 4 (18) Lawsuits against health care workers and 5 facilities pose a similarly dangerous risk to interstate 6 commerce. Interstate commerce will not truly re- 7 bound from this crisis until the virus is defeated, 8 and that will not happen unless health care workers 9 and facilities are free to combat vigorously the virus 10 and treat patients with coronavirus and those other- 11 wise impacted by the response to coronavirus. 12 (19) Subjecting health care workers and facili- 13 ties to onerous litigation even as they have done 14 their level best to combat a virus about which very 15 little was known when it arrived in the United 16 States would divert important health care resources 17 from hospitals and providers to courtrooms. 18 (20) Such a diversion would substantially affect 19 interstate commerce by degrading the national ca- 20 pacity for combating the virus and saving patients, 21 thereby substantially elongating the period before 22 interstate commerce could fully re-engage. 23 (21) Congress also has the authority to deter- 24 mine the jurisdiction of the courts of the United 25 States, to set the standards for causes of action they HEN20806 NTW S.L.C. 10 1 can hear, and to establish the rules by which those 2 causes of action should proceed. Congress therefore 3 must act to set rules governing liability in 4 coronavirus-related lawsuits. 5 (22) These rules necessarily must be temporary 6 and carefully tailored to the interstate crisis caused 7 by the coronavirus pandemic. They must extend no 8 further than necessary to meet this uniquely na- 9 tional crisis for which a patchwork of State and local 10 tort laws are ill-suited. 11 (23) Because of the national scope of the eco- 12 nomic and health care dangers posed by the risks of 13 coronavirus-related lawsuits, establishing temporary 14 rules governing liability for certain coronavirus-re- 15 lated tort claims is a necessary and proper means of 16 carrying into execution Congress’s power to regulate 17 commerce among the several States. 18 (24) Because Congress must safeguard the in- 19 vestment of taxpayer dollars it made in the CARES 20 Act and other coronavirus legislation, and ensure 21 that they are used for their intended purposes and 22 not diverted for other purposes, establishing tem- 23 porary 24 coronavirus-related tort claims is a necessary and 25 proper means of carrying into execution Congress’s rules governing liability for certain HEN20806 NTW S.L.C. 11 1 power to provide for the general welfare of the 2 United States. 3 (b) PURPOSES.—Pursuant to the powers delegated to 4 Congress by article I, section 8, clauses 1, 3, 9, and 18, 5 and article III, section 2, clause 1 of the Constitution of 6 the United States, the purposes of this Act are to— 7 (1) establish necessary and consistent standards 8 for litigating certain claims specific to the unique 9 coronavirus pandemic; 10 11 (2) prevent the overburdening of the court systems with undue litigation; 12 (3) encourage planning, care, and appropriate 13 risk management by small and large businesses, 14 schools, colleges and universities, religious, philan- 15 thropic and other nonprofit institutions, local gov- 16 ernment agencies, and health care providers; 17 (4) ensure that the Nation’s recovery from the 18 coronavirus economic crisis is not burdened or 19 slowed by the substantial risk of litigation; 20 (5) prevent litigation brought to extract settle- 21 ments and enrich trial lawyers rather than vindicate 22 meritorious claims; 23 24 (6) protect interstate commerce from the burdens of potentially meritless litigation; HEN20806 NTW S.L.C. 12 1 2 (7) ensure the economic recovery proceeds without artificial and unnecessary delay; 3 (8) protect the interests of the taxpayers by en- 4 suring that emergency taxpayer support continues to 5 aid businesses, workers, and health care providers 6 rather than enrich trial lawyers; and 7 (9) protect the highest and best ideals of the 8 national economy, so businesses can produce and 9 serve their customers, workers can work, teachers 10 can teach, students can learn, and believers can wor- 11 ship. 12 SEC. 3. DEFINITIONS. 13 In this Act: 14 (1) APPLICABLE GOVERNMENT 15 AND GUIDANCE.—The 16 standards and guidance’’ means— STANDARDS term ‘‘applicable government 17 (A) any mandatory standards or regula- 18 tions specifically concerning the prevention or 19 mitigation of the transmission of coronavirus 20 issued by the Federal Government, or a State 21 or local government with jurisdiction over an in- 22 dividual or entity, whether provided by execu- 23 tive, judicial, or legislative order; and 24 (B) with respect to an individual or entity 25 that, at the time of the actual, alleged, feared, HEN20806 NTW S.L.C. 13 1 or potential for exposure to coronavirus is not 2 subject to any mandatory standards or regula- 3 tions described in subparagraph (A), any guid- 4 ance, standards, or regulations specifically con- 5 cerning the prevention or mitigation of the 6 transmission of coronavirus issued by the Fed- 7 eral Government, or a State or local govern- 8 ment with jurisdiction over the individual or en- 9 tity. 10 (2) BUSINESSES, SERVICES, ACTIVITIES, OR AC- 11 COMMODATIONS.—The 12 activities, or accommodations’’ means any act by an 13 individual or entity, irrespective of whether the act 14 is carried on for profit, that is interstate or foreign 15 commerce, that involves persons or things in inter- 16 state or foreign commerce, that involves the channels 17 or instrumentalities of interstate or foreign com- 18 merce, that substantially affects interstate or foreign 19 commerce, or that is otherwise an act subject to reg- 20 ulation by Congress as necessary and proper to 21 carry into execution Congress’s powers to regulate 22 interstate or foreign commerce or to spend funds for 23 the general welfare. term ‘‘businesses, services, 24 (3) CORONAVIRUS.—The term ‘‘coronavirus’’ 25 means any disease, health condition, or threat of HEN20806 NTW S.L.C. 14 1 harm caused by the SARS–CoV–2 virus or a virus 2 mutating therefrom. 3 4 5 (4) CORONAVIRUS (A) IN EXPOSURE ACTION.— GENERAL.—The term ‘‘coronavirus exposure action’’ means a civil action— 6 (i) brought by a person who suffered 7 personal injury or is at risk of suffering 8 personal injury, or a representative of a 9 person who suffered personal injury or is 10 at risk of suffering personal injury; 11 (ii) brought against an individual or 12 entity engaged in businesses, services, ac- 13 tivities, or accommodations; and 14 (iii) alleging that an actual, alleged, 15 feared, 16 coronavirus caused the personal injury or 17 risk of personal injury, that— or potential for exposure to 18 (I) occurred in the course of the 19 businesses, services, activities, or ac- 20 commodations of the individual or en- 21 tity; and 22 23 24 25 (II) occurred— (aa) on or after December 1, 2019; and (bb) before the later of— HEN20806 NTW S.L.C. 15 1 2 (AA) October 1, 2024; or 3 (BB) the date on which 4 there is no declaration by 5 the Secretary of Health and 6 Human Services under sec- 7 tion 319F–3(b) of the Pub- 8 lic Health Service Act (42 9 U.S.C. 247d–6d(b)) (relat- 10 ing 11 measures) that is in effect 12 with respect to coronavirus, 13 including 14 Under the Public Readiness 15 and Emergency Prepared- 16 ness Act for Medical Coun- 17 termeasures 18 COVID–19 (85 Fed. Reg. 19 15198 ) issued by the Sec- 20 retary of Health and Human 21 Services on March 17, 2020. 22 (B) EXCLUSIONS.—The term ‘‘coronavirus 23 to medical the counter- Declaration Against exposure action’’ does not include— 24 (i) a criminal, civil, or administrative 25 enforcement action brought by the Federal HEN20806 NTW S.L.C. 16 1 Government or any State, local, or Tribal 2 government; or 3 (ii) a claim alleging intentional dis- 4 crimination on the basis of race, color, na- 5 tional origin, religion, sex (including preg- 6 nancy), disability, genetic information, or 7 age. 8 9 (5) term CORONAVIRUS-RELATED ‘‘coronavirus-related ACTION.—The action’’ means a 10 coronavirus exposure action or a coronavirus-related 11 medical liability action. 12 (6) CORONAVIRUS-RELATED HEALTH CARE 13 SERVICES.—The 14 care services’’ means services provided by a health 15 care provider, regardless of the location where the 16 services are provided, that relate to— 17 18 term ‘‘coronavirus-related health (A) the diagnosis, prevention, or treatment of coronavirus; 19 (B) the assessment or care of an individual 20 with 21 coronavirus; or a confirmed or suspected case of 22 (C) the care of any individual who is ad- 23 mitted to, presents to, receives services from, or 24 resides at, a health care provider for any pur- 25 pose during the period of a Federal emergency HEN20806 NTW S.L.C. 17 1 declaration concerning coronavirus, if such pro- 2 vider’s decisions or activities with respect to 3 such individual are impacted as a result of 4 coronavirus. 5 (7) CORONAVIRUS-RELATED 6 7 MEDICAL LIABIL- ITY ACTION.— (A) IN GENERAL.—The term ‘‘coronavirus- 8 related medical liability action’’ means a civil 9 action— 10 (i) brought by a person who suffered 11 personal injury, or a representative of a 12 person who suffered personal injury; 13 14 15 (ii) brought against a health care provider; and (iii) alleging any harm, damage, 16 breach, or tort resulting in the personal in- 17 jury alleged to have been caused by, be 18 arising out of, or be related to a health 19 care provider’s act or omission in the 20 course of arranging for or providing 21 coronavirus-related health care services 22 that occurred— 23 24 25 (I) on or after December 1, 2019; and (II) before the later of— HEN20806 NTW S.L.C. 18 1 (aa) October 1, 2024; or 2 (bb) the date on which there 3 is no declaration by the Secretary 4 of Health and Human Services 5 under section 319F–3(b) of the 6 Public Health Service Act (42 7 U.S.C. 247d–6d(b)) (relating to 8 covered countermeasures) that is 9 in effect with respect to 10 coronavirus, including the Dec- 11 laration Under the Public Readi- 12 ness and Emergency Prepared- 13 ness Act for Medical Counter- 14 measures Against COVID–19 (85 15 Fed. Reg. 15198 ) issued by the 16 Secretary of Health and Human 17 Services on March 17, 2020. 18 (B) EXCLUSIONS.—The term 19 ‘‘coronavirus-related medical liability action’’ 20 does not include— 21 (i) a criminal, civil, or administrative 22 enforcement action brought by the Federal 23 Government or any State, local, or Tribal 24 government; or HEN20806 NTW S.L.C. 19 1 (ii) a claim alleging intentional dis- 2 crimination on the basis of race, color, na- 3 tional origin, religion, sex (including preg- 4 nancy), disability, genetic information, or 5 age. 6 (8) EMPLOYER.—The term ‘‘employer’’— 7 (A) means any person serving as an em- 8 ployer or acting directly in the interest of an 9 employer in relation to an employee; 10 (B) includes a public agency; and 11 (C) does not include any labor organization 12 (other than when acting as an employer) or any 13 person acting in the capacity of officer or agent 14 of such labor organization. 15 (9) GOVERNMENT.—The term ‘‘government’’ 16 means an agency, instrumentality, or other entity of 17 the Federal Government, a State government (in- 18 cluding multijurisdictional agencies, instrumental- 19 ities, and entities), a local government, or a Tribal 20 government. 21 (10) GROSS NEGLIGENCE.—The term ‘‘gross 22 negligence’’ means a conscious, voluntary act or 23 omission in reckless disregard of— 24 (A) a legal duty; 25 (B) the consequences to another party; and HEN20806 NTW S.L.C. 20 1 (C) applicable government standards and 2 guidance. 3 (11) HARM.—The term ‘‘harm’’ includes— 4 (A) physical and nonphysical contact that 5 results in personal injury to an individual; and 6 (B) economic and noneconomic losses. 7 8 (12) HEALTH (A) IN CARE PROVIDER.— GENERAL.—The term ‘‘health care 9 provider’’ means any person, including an 10 agent, volunteer (subject to subparagraph (C)), 11 contractor, employee, or other entity, who is— 12 (i) required by Federal or State law to 13 be licensed, registered, or certified to pro- 14 vide health care and is so licensed, reg- 15 istered, or certified (or is exempt from any 16 such requirement); 17 (ii) otherwise authorized by Federal or 18 State law to provide care (including serv- 19 ices and supports furnished in a home or 20 community-based residential setting under 21 the State Medicaid program or a waiver of 22 that program); or 23 (iii) considered under applicable Fed- 24 eral or State law to be a health care pro- HEN20806 NTW S.L.C. 21 1 vider, health care professional, health care 2 institution, or health care facility. 3 (B) INCLUSION OF ADMINISTRATORS, SU- 4 PERVISORS, ETC.—The 5 vider’’ includes a health care facility adminis- 6 trator, executive, supervisor, board member or 7 trustee, or another individual responsible for di- 8 recting, supervising, or monitoring the provision 9 of coronavirus-related health care services in a 10 11 term ‘‘health care pro- comparable role. (C) INCLUSION OF VOLUNTEERS.—The 12 term ‘‘health care provider’’ includes volunteers 13 that meet the following criteria: 14 (i) The volunteer is a health care pro- 15 fessional 16 health care services. 17 18 19 20 21 22 23 24 providing coronavirus-related (ii) The act or omission by the volunteer occurs— (I) in the course of providing health care services; (II) in the health care professional’s capacity as a volunteer; (III) in the course of providing health care services that— HEN20806 NTW S.L.C. 22 1 (aa) are within the scope of 2 the license, registration, or cer- 3 tification of the volunteer, as de- 4 fined by the State of licensure, 5 registration, or certification; and 6 (bb) do not exceed the scope 7 of license, registration, or certifi- 8 cation of a substantially similar 9 health professional in the State 10 in which such act or omission oc- 11 curs; and 12 (IV) in a good-faith belief that 13 the individual being treated is in need 14 of health care services. 15 (13) INDIVIDUAL 16 vidual or entity’’ means— OR ENTITY.—The term ‘‘indi- 17 (A) any natural person, corporation, com- 18 pany, trade, business, firm, partnership, joint 19 stock company, educational institution, labor 20 organization, or similar organization or group 21 of organizations; 22 (B) any nonprofit organization, foundation, 23 society, or association organized for religious, 24 charitable, educational, or other purposes; or 25 (C) any State, Tribal, or local government. HEN20806 NTW S.L.C. 23 1 (14) LOCAL GOVERNMENT.—The term ‘‘local 2 government’’ means any unit of government within 3 a State, including a— 4 (A) county; 5 (B) borough; 6 (C) municipality; 7 (D) city; 8 (E) town; 9 (F) township; 10 (G) parish; 11 (H) local public authority, including any 12 public housing agency under the United States 13 Housing Act of 1937 (42 U.S.C. 1437 et seq.); 14 (I) special district; 15 (J) school district; 16 (K) intrastate district; 17 (L) council of governments, whether or not 18 incorporated as a nonprofit corporation under 19 State law; and 20 (M) agency or instrumentality of— 21 (i) multiple units of local government 22 (including units of local government lo- 23 cated in different States); or 24 25 (ii) an intra-State unit of local government. HEN20806 NTW S.L.C. 24 1 (15) MANDATORY.—The term ‘‘mandatory’’, 2 with respect to standards or regulations, means the 3 standards or regulations are themselves enforceable 4 by the issuing government through criminal, civil, or 5 administrative action. 6 (16) PERSONAL 7 INJURY.—The term ‘‘personal injury’’— 8 (A) means actual or potential physical in- 9 jury to an individual or death caused by a phys- 10 ical injury; and 11 (B) includes mental suffering, emotional 12 distress, or similar injuries suffered by an indi- 13 vidual in connection with a physical injury. 14 (17) STATE.—The term ‘‘State’’— 15 (A) means any State of the United States, 16 the District of Columbia, the Commonwealth of 17 Puerto Rico, the Northern Mariana Islands, the 18 United States Virgin Islands, Guam, American 19 Samoa, and any other territory or possession of 20 the United States, and any political subdivision 21 or instrumentality thereof; and 22 (B) includes any agency or instrumentality 23 of 2 or more of the entities described in sub- 24 paragraph (A). 25 (18) TRIBAL GOVERNMENT.— HEN20806 NTW S.L.C. 25 1 (A) IN GENERAL.—The term ‘‘Tribal gov- 2 ernment’’ means the recognized governing body 3 of any Indian tribe included on the list pub- 4 lished by the Secretary of the Interior pursuant 5 to section 104(a) of the Federally Recognized 6 Indian Tribe List Act of 1994 (25 U.S.C. 7 5131(a)). 8 (B) INCLUSION.—The term ‘‘Tribal gov- 9 ernment’’ includes any subdivision (regardless 10 of the laws and regulations of the jurisdiction 11 in which the subdivision is organized or incor- 12 porated) of a governing body described in sub- 13 paragraph (A) that— 14 (i) is wholly owned by that governing 15 body; and 16 (ii) has been delegated the right to ex- 17 ercise 1 or more substantial governmental 18 functions of the governing body. 19 (19) WILLFUL MISCONDUCT.—The term ‘‘will- 20 ful misconduct’’ means an act or omission that is 21 taken— 22 23 24 25 (A) intentionally to achieve a wrongful purpose; (B) knowingly without legal or factual justification; and HEN20806 NTW S.L.C. 26 1 (C) in disregard of a known or obvious risk 2 that is so great as to make it highly probable 3 that the harm will outweigh the benefit. 4 8 TITLE I—LIABILITY RELIEF Subtitle A—Liability Limitations for Individuals and Entities Engaged in Businesses, Services, Activities, or Accommodations 9 SEC. 121. APPLICATION OF SUBTITLE. 5 6 7 10 11 12 13 (a) CAUSE OF ACTION; TRIBAL SOVEREIGN IMMU- NITY.— (1) CAUSE OF ACTION.— (A) IN GENERAL.—This subtitle creates an 14 exclusive cause of action for coronavirus expo- 15 sure actions. 16 (B) LIABILITY.—A plaintiff may prevail in 17 a coronavirus exposure action only in accord- 18 ance with the requirements of this title. 19 20 (C) APPLICATION.—The provisions of this subtitle shall apply to— 21 (i) any cause of action that is a 22 coronavirus exposure action that was filed 23 before the date of enactment of this Act 24 and that is pending on such date of enact- 25 ment; and HEN20806 NTW S.L.C. 27 1 2 3 (ii) any coronavirus exposure action filed on or after such date of enactment. (2) PRESERVATION OF LIABILITY LIMITS AND 4 DEFENSES.—Except 5 in this subtitle, nothing in this subtitle expands any 6 liability otherwise imposed or limits any defense oth- 7 erwise available under Federal, State, or Tribal law. 8 (3) IMMUNITY.—Nothing in this subtitle abro- 9 gates the immunity of any State, or waives the im- 10 munity of any Tribal government. The limitations on 11 liability provided under this subtitle shall control in 12 any action properly filed against a State or Tribal 13 government pursuant to a duly executed waiver by 14 the State or Tribe of sovereign immunity and stat- 15 ing claims within the scope of this subtitle. 16 (b) PREEMPTION AND SUPERSEDURE.— 17 (1) IN as otherwise explicitly provided GENERAL.—Except as described in para- 18 graphs (2) through (6), this subtitle preempts and 19 supersedes any Federal, State, or Tribal law, includ- 20 ing statutes, regulations, rules, or standards that are 21 enacted, promulgated, or established under common 22 law, related to recovery for personal injuries caused 23 by actual, alleged, feared, or potential for exposure 24 to coronavirus. HEN20806 NTW S.L.C. 28 1 (2) STRICTER LAWS NOT PREEMPTED OR SU- 2 PERSEDED.—Nothing 3 strued to affect the applicability of any provision of 4 any Federal, State, or Tribal law that imposes 5 stricter limits on damages or liabilities for personal 6 injury caused by, arising out of, or related to an ac- 7 tual, alleged, feared, or potential for exposure to 8 coronavirus, or otherwise affords greater protection 9 to defendants in any coronavirus exposure action, 10 than are provided in this subtitle. Any such provi- 11 sion of Federal, State, or Tribal law shall be applied 12 in addition to the requirements of this subtitle and 13 not in lieu thereof. 14 (3) WORKERS’ in this subtitle shall be con- COMPENSATION LAWS NOT PRE- 15 EMPTED OR SUPERSEDED.—Nothing 16 shall be construed to affect the applicability of any 17 State or Tribal law providing for a workers’ com- 18 pensation scheme or program, or to preempt or su- 19 persede an exclusive remedy under such scheme or 20 program. 21 (4) ENFORCEMENT in this subtitle ACTIONS.—Nothing in this 22 subtitle shall be construed to impair, limit, or affect 23 the authority of the Federal Government, or of any 24 State, local, or Tribal government, to bring any HEN20806 NTW S.L.C. 29 1 criminal, civil, or administrative enforcement action 2 against any individual or entity. 3 (5) DISCRIMINATION CLAIMS.—Nothing in this 4 subtitle shall be construed to affect the applicability 5 of any provision of any Federal, State, or Tribal law 6 that creates a cause of action for intentional dis- 7 crimination on the basis of race, color, national ori- 8 gin, religion, sex (including pregnancy), disability, 9 genetic information, or age. 10 (6) MAINTENANCE AND CURE.—Nothing in this 11 subtitle shall be construed to affect a seaman’s right 12 to claim maintenance and cure benefits. 13 (c) STATUTE OF LIMITATIONS.—A coronavirus expo- 14 sure action may not be commenced in any Federal, State, 15 or Tribal government court later than 1 year after the 16 date of the actual, alleged, feared, or potential for expo17 sure to coronavirus. 18 SEC. 122. LIABILITY; SAFE HARBOR. 19 20 (a) REQUIREMENTS TO FOR LIABILITY FOR EXPOSURE CORONAVIRUS.—Notwithstanding any other provision 21 of law, and except as otherwise provided in this section, 22 no individual or entity engaged in businesses, services, ac23 tivities, or accommodations shall be liable in any 24 coronavirus exposure action unless the plaintiff can prove 25 by clear and convincing evidence that— HEN20806 NTW S.L.C. 30 1 (1) in engaging in the businesses, services, ac- 2 tivities, or accommodations, the individual or entity 3 was not making reasonable efforts in light of all the 4 circumstances to comply with the applicable govern- 5 ment standards and guidance in effect at the time 6 of the actual, alleged, feared, or potential for expo- 7 sure to coronavirus; 8 (2) the individual or entity engaged in gross 9 negligence or willful misconduct that caused an ac- 10 11 tual exposure to coronavirus; and (3) the actual exposure to coronavirus caused 12 the personal injury of the plaintiff. 13 (b) REASONABLE EFFORTS TO COMPLY.— 14 15 16 (1) CONFLICTING APPLICABLE GOVERNMENT STANDARDS AND GUIDANCE.— (A) IN GENERAL.—If more than 1 govern- 17 ment to whose jurisdiction an individual or enti- 18 ty is subject issues applicable government 19 standards and guidance, and the applicable gov- 20 ernment standards and guidance issued by 1 or 21 more of the governments conflicts with the ap- 22 plicable government standards and guidance 23 issued by 1 or more of the other governments, 24 the individual or entity shall be considered to 25 have made reasonable efforts in light of all the HEN20806 NTW S.L.C. 31 1 circumstances to comply with the applicable 2 government standards and guidance for pur- 3 poses of subsection (a)(1) unless the plaintiff 4 establishes by clear and convincing evidence 5 that the individual or entity was not making 6 reasonable efforts in light of all the cir- 7 cumstances to comply with any of the con- 8 flicting applicable government standards and 9 guidance issued by any government to whose ju- 10 risdiction the individual or entity is subject. 11 (B) EXCEPTION.—If mandatory standards 12 and regulations constituting applicable govern- 13 ment standards and guidance issued by any 14 government with jurisdiction over the individual 15 or entity conflict with applicable government 16 standards and guidance that are not mandatory 17 and are issued by any other government with 18 jurisdiction over the individual or entity or by 19 the same government that issued the mandatory 20 standards and regulations, the plaintiff may es- 21 tablish that the individual or entity did not 22 make reasonable efforts in light of all the cir- 23 cumstances to comply with the applicable gov- 24 ernment standards and guidance for purposes 25 of subsection (a)(1) by establishing by clear and HEN20806 NTW S.L.C. 32 1 convincing evidence that the individual or entity 2 was not making reasonable efforts in light of all 3 the circumstances to comply with the manda- 4 tory standards and regulations to which the in- 5 dividual or entity was subject. 6 (2) WRITTEN 7 (A) IN OR PUBLISHED POLICY.— GENERAL.—If an individual or enti- 8 ty engaged in businesses, services, activities, or 9 accommodations maintained a written or pub- 10 lished policy on the mitigation of transmission 11 of coronavirus at the time of the actual, alleged, 12 feared, or potential for exposure to coronavirus 13 that complied with, or was more protective 14 than, the applicable government standards and 15 guidance to which the individual or entity was 16 subject, the individual or entity shall be pre- 17 sumed to have made reasonable efforts in light 18 of all the circumstances to comply with the ap- 19 plicable government standards and guidance for 20 purposes of subsection (a)(1). 21 (B) REBUTTAL.—The plaintiff may rebut 22 the presumption under subparagraph (A) by es- 23 tablishing that the individual or entity was not 24 complying with the written or published policy HEN20806 NTW S.L.C. 33 1 at the time of the actual, alleged, feared, or po- 2 tential for exposure to coronavirus. 3 (C) ABSENCE OF A WRITTEN OR PUB- 4 LISHED POLICY.—The 5 published policy shall not give rise to a pre- 6 sumption that the individual or entity did not 7 make reasonable efforts in light of all the cir- 8 cumstances to comply with the applicable gov- 9 ernment standards and guidance for purposes 10 of subsection (a)(1). 11 (3) TIMING.—For absence of a written or purposes of subsection 12 (a)(1), a change to a policy or practice by an indi- 13 vidual or entity before or after the actual, alleged, 14 feared, or potential for exposure to coronavirus, shall 15 not be evidence of liability for the actual, alleged, 16 feared, or potential for exposure to coronavirus. 17 (c) THIRD PARTIES.—No individual or entity shall be 18 held liable in a coronavirus exposure action for the acts 19 or omissions of a third party, unless— 20 (1) the individual or entity had an obligation 21 under general common law principles to control the 22 acts or omissions of the third party; or 23 24 (2) the third party was an agent of the individual or entity. HEN20806 NTW S.L.C. 34 1 (d) MITIGATION.—Changes to the policies, practices, 2 or procedures of an individual or entity for complying with 3 the applicable government standards and guidance after 4 the time of the actual, alleged, feared, or potential for ex5 posure to coronavirus, shall not be considered evidence of 6 liability or culpability. 7 8 9 Subtitle B—Liability Limitations for Health Care Providers SEC. 141. APPLICATION OF SUBTITLE. 10 (a) IN GENERAL.— 11 (1) CAUSE 12 OF ACTION.— (A) IN GENERAL.—This subtitle creates an 13 exclusive cause of action for coronavirus-related 14 medical liability actions. 15 (B) LIABILITY.—A plaintiff may prevail in 16 a coronavirus-related medical liability action 17 only in accordance with the requirements of this 18 title. 19 20 (C) APPLICATION.—The provisions of this subtitle shall apply to— 21 (i) any cause of action that is a 22 coronavirus-related medical liability action 23 that was filed before the date of enactment 24 of this Act and that is pending on such 25 date of enactment; and HEN20806 NTW S.L.C. 35 1 (ii) any coronavirus-related medical li- 2 ability action filed on or after such date of 3 enactment. 4 (2) PRESERVATION OF LIABILITY LIMITS AND 5 DEFENSES.—Except 6 in this subtitle, nothing in this subtitle expands any 7 liability otherwise imposed or limits any defense oth- 8 erwise available under Federal, State, or Tribal law. 9 (3) IMMUNITY.—Nothing in this subtitle abro- 10 gates the immunity of any State, or waives the im- 11 munity of any Tribal government. The limitations on 12 liability provided under this subtitle shall control in 13 any action properly filed against a State or Tribal 14 government pursuant to a duly executed waiver by 15 the State or Tribe of sovereign immunity and stat- 16 ing claims within the scope of this subtitle. 17 (b) PREEMPTION AND SUPERSEDURE.— 18 (1) IN as otherwise explicitly provided GENERAL.—Except as described in para- 19 graphs (2) through (6), this subtitle preempts and 20 supersedes any Federal, State, or Tribal law, includ- 21 ing statutes, regulations, rules, or standards that are 22 enacted, promulgated, or established under common 23 law, related to recovery for personal injuries caused 24 by, arising out of, or related to an act or omission 25 by a health care provider in the course of arranging HEN20806 NTW S.L.C. 36 1 for or providing coronavirus-related health care serv- 2 ices. 3 (2) STRICTER LAWS NOT PREEMPTED OR SU- 4 PERSEDED.—Nothing 5 strued to affect the applicability of any provision of 6 any Federal, State, or Tribal law that imposes 7 stricter limits on damages or liabilities for personal 8 injury caused by, arising out of, or related to an act 9 or omission by a health care provider in the course 10 of arranging for or providing coronavirus-related 11 health care services, or otherwise affords greater 12 protection to defendants in any coronavirus-related 13 medical liability action than are provided in this sub- 14 title. Any such provision of Federal, State, or Tribal 15 law shall be applied in addition to the requirements 16 of this subtitle and not in lieu thereof. 17 in this subtitle shall be con- (3) ENFORCEMENT ACTIONS.—Nothing in this 18 subtitle shall be construed to impair, limit, or affect 19 the authority of the Federal Government, or of any 20 State, local, or Tribal government to bring any 21 criminal, civil, or administrative enforcement action 22 against any health care provider. 23 (4) DISCRIMINATION CLAIMS.—Nothing in this 24 subtitle shall be construed to affect the applicability 25 of any provision of any Federal, State, or Tribal law HEN20806 NTW S.L.C. 37 1 that creates a cause of action for intentional dis- 2 crimination on the basis of race, color, national ori- 3 gin, religion, sex (including pregnancy), disability, 4 genetic information, or age. 5 (5) PUBLIC READINESS AND EMERGENCY PRE- 6 PAREDNESS.—Nothing 7 strued to affect the applicability of section 319F–3 8 of the Public Health Service Act (42 U.S.C. 247d– 9 6d) to any act or omission involving a covered coun- 10 termeasure, as defined in subsection (i) of such sec- 11 tion in arranging for or providing coronavirus-re- 12 lated health care services. Nothing in this subtitle 13 shall be construed to affect the applicability of sec- 14 tion 319F–4 of the Public Health Service Act (42 15 U.S.C. 247d–6e). 16 (6) VACCINE in this subtitle shall be con- INJURY.—To the extent that title 17 XXI of the Public Health Service Act (42 U.S.C. 18 300aa–1 et seq.) establishes a Federal rule applica- 19 ble to a civil action brought for a vaccine-related in- 20 jury or death, this subtitle does not affect the appli- 21 cation of that rule to such an action. 22 (c) STATUTE OF LIMITATIONS.—A coronavirus-re- 23 lated medical liability action may not be commenced in 24 any Federal, State, or Tribal government court later than HEN20806 NTW S.L.C. 38 1 1 year after the date of the alleged harm, damage, breach, 2 or tort, unless tolled for— 3 (1) proof of fraud; 4 (2) intentional concealment; or 5 (3) the presence of a foreign body, which has no 6 therapeutic or diagnostic purpose or effect, in the 7 person of the injured person. 8 SEC. 142. LIABILITY FOR HEALTH CARE PROFESSIONALS 9 AND 10 11 HEALTH CARE FACILITIES DURING CORONAVIRUS PUBLIC HEALTH EMERGENCY. (a) REQUIREMENTS FOR LIABILITY FOR 12 CORONAVIRUS-RELATED HEALTH CARE SERVICES.—Not13 withstanding any other provision of law, and except as 14 provided in subsection (b), no health care provider shall 15 be liable in a coronavirus-related medical liability action 16 unless the plaintiff can prove by clear and convincing evi17 dence— 18 19 (1) gross negligence or willful misconduct by the health care provider; and 20 (2) that the alleged harm, damage, breach, or 21 tort resulting in the personal injury was directly 22 caused by the alleged gross negligence or willful mis- 23 conduct. 24 (b) EXCEPTIONS.—For purposes of this section, acts, 25 omissions, or decisions resulting from a resource or staff- HEN20806 NTW S.L.C. 39 1 ing shortage shall not be considered willful misconduct or 2 gross negligence. 6 Subtitle C—Substantive and Procedural Provisions for Coronavirus-related Actions Generally 7 SEC. 161. JURISDICTION. 3 4 5 8 (a) JURISDICTION.—The district courts of the United 9 States shall have concurrent original jurisdiction of any 10 coronavirus-related action. 11 (b) REMOVAL.— 12 (1) IN GENERAL.—A coronavirus-related action 13 of which the district courts of the United States 14 have original jurisdiction under subsection (a) that 15 is brought in a State or Tribal government court 16 may be removed to a district court of the United 17 States in accordance with section 1446 of title 28, 18 United States Code, except that— 19 (A) notwithstanding subsection (b)(2)(A) 20 of such section, such action may be removed by 21 any defendant without the consent of all de- 22 fendants; and 23 (B) notwithstanding subsection (b)(1) of 24 such section, for any cause of action that is a 25 coronavirus-related action that was filed in a HEN20806 NTW S.L.C. 40 1 State court before the date of enactment of this 2 Act and that is pending in such court on such 3 date of enactment, and of which the district 4 courts of the United States have original juris- 5 diction under subsection (a), any defendant 6 may file a notice of removal of a civil action or 7 proceeding within 30 days of the date of enact- 8 ment of this Act. 9 (2) PROCEDURE AFTER REMOVAL.—Section 10 1447 of title 28, United States Code, shall apply to 11 any removal of a case under paragraph (1), except 12 that, notwithstanding subsection (d) of such section, 13 a court of appeals of the United States shall accept 14 an appeal from an order of a district court granting 15 or denying a motion to remand the case to the State 16 or Tribal government court from which it was re- 17 moved if application is made to the court of appeals 18 of the United States not later than 10 days after the 19 entry of the order. 20 21 22 SEC. 162. LIMITATIONS ON SUITS. (a) JOINT AND (1) IN SEVERAL LIABILITY LIMITATIONS.— GENERAL.—An individual or entity 23 against whom a final judgment is entered in any 24 coronavirus-related action shall be liable solely for 25 the portion of the judgment that corresponds to the HEN20806 NTW S.L.C. 41 1 relative and proportionate responsibility of that indi- 2 vidual or entity. In determining the percentage of re- 3 sponsibility of any defendant, the trier of fact shall 4 determine that percentage as a percentage of the 5 total fault of all individuals or entities, including the 6 plaintiff, who caused or contributed to the total loss 7 incurred by the plaintiff. 8 9 (2) PROPORTIONATE (A) LIABILITY.— DETERMINATION OF RESPONSI- 10 BILITY.—In 11 court shall instruct the jury to answer special 12 interrogatories, or, if there is no jury, the court 13 shall make findings with respect to each defend- 14 ant, including defendants who have entered into 15 settlements with the plaintiff or plaintiffs, con- 16 cerning the percentage of responsibility, if any, 17 of each defendant, measured as a percentage of 18 the total fault of all individuals or entities who 19 caused or contributed to the loss incurred by 20 the plaintiff. 21 any coronavirus-related action, the (B) FACTORS FOR CONSIDERATION.—In 22 determining the percentage of responsibility 23 under this subsection, the trier of fact shall 24 consider— HEN20806 NTW S.L.C. 42 1 (i) the nature of the conduct of each 2 individual or entity found to have caused 3 or contributed to the loss incurred by the 4 plaintiff; and 5 (ii) the nature and extent of the caus- 6 al relationship between the conduct of each 7 such individual or entity and the damages 8 incurred by the plaintiff. 9 (3) JOINT LIABILITY FOR SPECIFIC INTENT OR 10 FRAUD.—Notwithstanding 11 coronavirus-related action the liability of a defendant 12 is joint and several if the trier of fact specifically de- 13 termines that the defendant— 14 15 (A) acted with specific intent to injure the plaintiff; or 16 17 paragraph (1), in any (B) knowingly committed fraud. (4) RIGHT TO CONTRIBUTION NOT AF- 18 FECTED.—Nothing 19 right, under any other law, of a defendant to con- 20 tribution with respect to another defendant deter- 21 mined under paragraph (3) to have acted with spe- 22 cific intent to injure the plaintiff or to have know- 23 ingly committed fraud. 24 (b) LIMITATIONS ON DAMAGES.—In any coronavirus- 25 related action— in this subsection affects the HEN20806 NTW S.L.C. 43 1 (1) the award of compensatory damages shall 2 be limited to economic losses incurred as the result 3 of the personal injury, harm, damage, breach, or 4 tort, except that the court may award damages for 5 noneconomic losses if the trier of fact determines 6 that the personal injury, harm, damage, breach, or 7 tort was caused by the willful misconduct of the in- 8 dividual or entity; 9 (2) punitive damages— 10 (A) may be awarded only if the trier of 11 fact determines that the personal injury to the 12 plaintiff was caused by the willful misconduct of 13 the individual or entity; and 14 (B) may not exceed the amount of compen- 15 satory damages awarded; and 16 (3) the amount of monetary damages awarded 17 to a plaintiff shall be reduced by the amount of com- 18 pensation received by the plaintiff from another 19 source in connection with the personal injury, harm, 20 damage, breach, or tort, such as insurance or reim- 21 bursement by a government. 22 (c) PREEMPTION AND SUPERSEDURE.— 23 (1) IN GENERAL.—Except as described in para- 24 graphs (2) and (3), this section preempts and super- 25 sedes any Federal, State, or Tribal law, including HEN20806 NTW S.L.C. 44 1 statutes, regulations, rules, or standards that are en- 2 acted, promulgated, or established under common 3 law, related to joint and several liability, propor- 4 tionate or contributory liability, contribution, or the 5 award of damages for any coronavirus-related ac- 6 tion. 7 (2) STRICTER LAWS NOT PREEMPTED OR SU- 8 PERSEDED.—Nothing 9 strued to affect the applicability of any provision of 10 in this section shall be con- any Federal, State, or Tribal law that— 11 (A) limits the liability of a defendant in a 12 coronavirus-related action to a lesser degree of 13 liability than the degree of liability determined 14 under this section; 15 (B) otherwise affords a greater degree of 16 protection from joint or several liability than is 17 afforded by this section; or 18 (C) limits the damages that can be recov- 19 ered from a defendant in a coronavirus-related 20 action to a lesser amount of damages than the 21 amount determined under this section. 22 (3) PUBLIC READINESS AND EMERGENCY PRE- 23 PAREDNESS.—Nothing 24 strued to affect the applicability of section 319F–3 25 of the Public Health Service Act (42 U.S.C. 247d– in this subtitle shall be con- HEN20806 NTW S.L.C. 45 1 6d) to any act or omission involving a covered coun- 2 termeasure, as defined in subsection (i) of such sec- 3 tion in arranging for or providing coronavirus-re- 4 lated health care services. Nothing in this subtitle 5 shall be construed to affect the applicability of sec- 6 tion 319F–4 of the Public Health Service Act (42 7 U.S.C. 247d–6e). 8 SEC. 163. PROCEDURES FOR SUIT IN DISTRICT COURTS OF 9 10 THE UNITED STATES. (a) PLEADING WITH PARTICULARITY.—In any 11 coronavirus-related action filed in or removed to a district 12 court of the United States— 13 14 (1) the complaint shall plead with particularity— 15 16 (A) each element of the plaintiff’s claim; and 17 (B) with respect to a coronavirus exposure 18 action, all places and persons visited by the per- 19 son on whose behalf the complaint was filed and 20 all persons who visited the residence of the per- 21 son on whose behalf the complaint was filed 22 during the 14-day-period before the onset of the 23 first symptoms allegedly caused by coronavirus, 24 including— HEN20806 NTW S.L.C. 46 1 (i) each individual or entity against 2 which a complaint is filed, along with the 3 factual basis for the belief that such indi- 4 vidual or entity was a cause of the per- 5 sonal injury alleged; and 6 (ii) every other person or place visited 7 by the person on whose behalf the com- 8 plaint was filed and every other person 9 who visited the residence of the person on 10 whose behalf the complaint was filed dur- 11 ing such period, along with the factual 12 basis for the belief that these persons and 13 places were not the cause of the personal 14 injury alleged; and 15 (2) the complaint shall plead with particularity 16 each alleged act or omission constituting gross neg- 17 ligence or willful misconduct that resulted in per- 18 sonal injury, harm, damage, breach, or tort. 19 (b) SEPARATE STATEMENTS CONCERNING 20 TURE AND 21 OF 22 AMOUNT OF DAMAGES AND THE NA - REQUIRED STATE MIND.— (1) NATURE AND AMOUNT OF DAMAGES.—In 23 any coronavirus-related action filed in or removed to 24 a district court of the United States in which mone- 25 tary damages are requested, there shall be filed with HEN20806 NTW S.L.C. 47 1 the complaint a statement of specific information as 2 to the nature and amount of each element of dam- 3 ages and the factual basis for the damages calcula- 4 tion. 5 (2) REQUIRED STATE OF MIND.—In any 6 coronavirus-related action filed in or removed to a 7 district court of the United States in which a claim 8 is asserted on which the plaintiff may prevail only on 9 proof that the defendant acted with a particular 10 state of mind, there shall be filed with the com- 11 plaint, with respect to each element of that claim, a 12 statement of the facts giving rise to a strong infer- 13 ence that the defendant acted with the required 14 state of mind. 15 (c) VERIFICATION AND MEDICAL RECORDS.— 16 (1) VERIFICATION 17 (A) IN REQUIREMENT.— GENERAL.—The complaint in a 18 coronavirus-related action filed in or removed to 19 a district court of the United States shall in- 20 clude a verification, made by affidavit of the 21 plaintiff under oath, stating that the pleading is 22 true to the knowledge of the deponent, except 23 as to matters specifically identified as being al- 24 leged on information and belief, and that as to 25 those matters the plaintiff believes it to be true. HEN20806 NTW S.L.C. 48 1 (B) IDENTIFICATION OF MATTERS AL- 2 LEGED UPON INFORMATION AND BELIEF.—Any 3 matter that is not specifically identified as 4 being alleged upon the information and belief of 5 the plaintiff, shall be regarded for all purposes, 6 including a criminal prosecution, as having been 7 made upon the knowledge of the plaintiff. 8 (2) MATERIALS REQUIRED.—In any 9 coronavirus-related action filed in or removed to a 10 district court of the United States, the plaintiff shall 11 file with the complaint— 12 (A) an affidavit by a physician or other 13 qualified medical expert who did not treat the 14 person on whose behalf the complaint was filed 15 that explains the basis for such physician’s or 16 other qualified medical expert’s belief that such 17 person suffered the personal injury, harm, dam- 18 age, breach, or tort alleged in the complaint; 19 and 20 (B) certified medical records documenting 21 the alleged personal injury, harm, damage, 22 breach, or tort. 23 (d) APPLICATION WITH FEDERAL RULES OF CIVIL 24 PROCEDURE.—This section applies exclusively to any 25 coronavirus-related action filed in or removed to a district HEN20806 NTW S.L.C. 49 1 court of the United States and, except to the extent that 2 this section requires additional information to be con3 tained in or attached to pleadings, nothing in this section 4 is intended to amend or otherwise supersede applicable 5 rules of Federal civil procedure. 6 (e) CIVIL DISCOVERY FOR ACTIONS IN DISTRICT 7 COURTS OF THE UNITED STATES.— 8 (1) TIMING.—Notwithstanding any other provi- 9 sion of law, in any coronavirus-related action filed in 10 or removed to a district court of the United States, 11 no discovery shall be allowed before— 12 13 14 (A) the time has expired for the defendant to answer or file a motion to dismiss; and (B) if a motion to dismiss is filed, the 15 court has ruled on the motion. 16 (2) STANDARD.—Notwithstanding any other 17 provision of law, the court in any coronavirus-related 18 action that is filed in or removed to a district court 19 of the United States— 20 (A) shall permit discovery only with re- 21 spect to matters directly related to material 22 issues contested in the coronavirus-related ac- 23 tion; and 24 (B) may compel a response to a discovery 25 request (including a request for admission, an HEN20806 NTW S.L.C. 50 1 interrogatory, a request for production of docu- 2 ments, or any other form of discovery request) 3 under rule 37 of the Federal Rules of Civil Pro- 4 cedure, only if the court finds that— 5 (i) the requesting party needs the in- 6 formation sought to prove or defend as to 7 a material issue contested in such action; 8 and 9 (ii) the likely benefits of a response to 10 such request equal or exceed the burden or 11 cost for the responding party of providing 12 such response. 13 14 (f) INTERLOCUTORY APPEAL COVERY.—The AND STAY OF DIS- courts of appeals of the United States shall 15 have jurisdiction of an appeal from a motion to dismiss 16 that is denied in any coronavirus-related action in a dis17 trict court of the United States. The district court shall 18 stay all discovery in such a coronavirus-related action until 19 the court of appeals has disposed of the appeal. 20 21 22 (g) CLASS ACTIONS TION AND MULTIDISTRICT LITIGA- PROCEEDINGS.— (1) CLASS ACTIONS.—In any coronavirus-re- 23 lated action that is filed in or removed to a district 24 court of the United States and is maintained as a 25 class action or multidistrict litigation— HEN20806 NTW S.L.C. 51 1 (A) an individual or entity shall only be a 2 member of the class if the individual or entity 3 affirmatively elects to be a member; and 4 (B) the court, in addition to any other no- 5 tice required by applicable Federal or State law, 6 shall direct notice of the action to each member 7 of the class, which shall include— 8 9 10 11 12 13 (i) a concise and clear description of the nature of the action; (ii) the jurisdiction where the case is pending; and (iii) the fee arrangements with class counsel, including— 14 15 (I) the hourly fee being charged; or 16 (II) if it is a contingency fee, the 17 percentage of the final award which 18 will be paid, including an estimate of 19 the total amount that would be paid if 20 the requested damages were to be 21 granted; and 22 (III) if the cost of the litigation 23 is being financed, a description of the 24 financing arrangement. 25 (2) MULTIDISTRICT LITIGATIONS.— HEN20806 NTW S.L.C. 52 1 (A) TRIAL PROHIBITION.—In any coordi- 2 nated or consolidated pretrial proceedings con- 3 ducted pursuant to section 1407(b) of title 28, 4 United States Code, the judge or judges to 5 whom coronavirus-related actions are assigned 6 by the Judicial Panel on Multidistrict Litigation 7 may not conduct a trial in a coronavirus-related 8 action transferred to or directly filed in the pro- 9 ceedings unless all parties to that coronavirus- 10 related action consent. 11 (B) REVIEW OF ORDERS.—The court of 12 appeals of the United States having jurisdiction 13 over the transferee district court shall permit 14 an appeal to be taken from any order issued in 15 the conduct of coordinated or consolidated pre- 16 trial proceedings conducted pursuant to section 17 1407(b) of title 28, United States Code, if the 18 order is applicable to 1 or more coronavirus-re- 19 lated actions and an immediate appeal from the 20 order may materially advance the ultimate ter- 21 mination of 1 or more coronavirus-related ac- 22 tions in the proceedings. 23 24 SEC. 164. DEMAND LETTERS; CAUSE OF ACTION. (a) CAUSE OF ACTION.—If any person transmits or 25 causes another to transmit in any form and by any means HEN20806 NTW S.L.C. 53 1 a demand for remuneration in exchange for settling, re2 leasing, waiving, or otherwise not pursuing a claim that 3 is, or could be, brought as part of a coronavirus-related 4 action, the party receiving such a demand shall have a 5 cause of action for the recovery of damages occasioned by 6 such demand and for declaratory judgment in accordance 7 with chapter 151 of title 28, United States Code, if the 8 claim for which the letter was transmitted was meritless. 9 (b) DAMAGES.—Damages available under subsection 10 (a) shall include— 11 12 (1) compensatory damages including costs incurred in responding to the demand; and 13 (2) punitive damages, if the court determines 14 that the defendant had knowledge or was reckless 15 with regard to the fact that the claim was meritless. 16 (c) ATTORNEY’S FEES AND COSTS.—In an action 17 commenced under subsection (a), if the plaintiff is a pre18 vailing party, the court shall, in addition to any judgment 19 awarded to a plaintiff, allow a reasonable attorney’s fee 20 to be paid by the defendant, and costs of the action. 21 (d) JURISDICTION.—The district courts of the United 22 States shall have concurrent original jurisdiction of all 23 claims arising under subsection (a). 24 (e) ENFORCEMENT BY THE ATTORNEY GENERAL.— HEN20806 NTW S.L.C. 54 1 (1) IN GENERAL.—Whenever the Attorney Gen- 2 eral has reasonable cause to believe that any person 3 or group of persons is engaged in a pattern or prac- 4 tice of transmitting demands for remuneration in ex- 5 change for settling, releasing, waiving, or otherwise 6 not pursuing a claim that is, or could be, brought 7 as part of a coronavirus-related action and that is 8 meritless, the Attorney General may commence a 9 civil action in any appropriate district court of the 10 United States. 11 (2) RELIEF.—In a civil action under paragraph 12 (1), the court may, to vindicate the public interest, 13 assess a civil penalty against the respondent in an 14 amount not exceeding $50,000 per transmitted de- 15 mand for remuneration in exchange for settling, re- 16 leasing, waiving or otherwise not pursuing a claim 17 that is meritless. 18 (3) DISTRIBUTION OF CIVIL PENALTIES.—If 19 the Attorney General obtains civil penalties in ac- 20 cordance with paragraph (2), the Attorney General 21 shall distribute the proceeds equitably among those 22 persons aggrieved by the respondent’s pattern or 23 practice of transmitting demands for remuneration 24 in exchange for settling, releasing, waiving or other- 25 wise not pursuing a claim that is meritless. HEN20806 NTW S.L.C. 55 2 Subtitle D—Relation to Labor and Employment Laws 3 SEC. 181. LIMITATION ON VIOLATIONS UNDER SPECIFIC 1 4 5 LAWS. (a) IN GENERAL.— 6 (1) DEFINITION.—In this subsection, the term 7 ‘‘covered Federal employment law’’ means any of the 8 following: 9 (A) The Occupational Safety and Health 10 Act of 1970 (29 U.S.C. 651 et seq.) (including 11 any standard included in a State plan approved 12 under section 18 of such Act (29 U.S.C. 667)). 13 (B) The Fair Labor Standards Act of 14 15 16 1938 (29 U.S.C. 201 et seq.). (C) The Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.). 17 (D) The Worker Adjustment and Retrain- 18 ing Notification Act (29 U.S.C. 2101 et seq.). 19 (E) Title VII of the Civil Rights Act of 20 1964 (42 U.S.C. 2000e et seq.). 21 (F) Title II of the Genetic Information 22 Nondiscrimination Act of 2008 (42 U.S.C. 23 2000ff et seq.). 24 25 (G) Title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.). HEN20806 NTW S.L.C. 56 1 (2) LIMITATION.—Notwithstanding any provi- 2 sion of a covered Federal employment law, in any 3 action, proceeding, or investigation resulting from or 4 related to an actual, alleged, feared, or potential for 5 exposure to coronavirus, or a change in working con- 6 ditions caused by a law, rule, declaration, or order 7 related to coronavirus, an employer shall not be sub- 8 ject to any enforcement proceeding or liability under 9 any provision of a covered Federal employment law 10 if the employer— 11 (A) was relying on and generally following 12 applicable government standards and guidance; 13 (B) knew of the obligation under the rel- 14 15 16 evant provision; and (C) attempted to satisfy any such obligation by— 17 (i) exploring options to comply with 18 such obligations and with the applicable 19 government standards and guidance (such 20 as through the use of virtual training or 21 remote communication strategies); 22 23 (ii) implementing interim alternative protections or procedures; or 24 (iii) following guidance issued by the 25 relevant agency with jurisdiction with re- HEN20806 NTW S.L.C. 57 1 spect to any exemptions from such obliga- 2 tion. 3 4 (b) PUBLIC ACCOMMODATION LAWS.— (1) DEFINITIONS.—In this subsection— 5 (A) the term ‘‘auxiliary aids and services’’ 6 has the meaning given the term in section 4 of 7 the Americans with Disabilities Act of 1990 (42 8 U.S.C. 12103); 9 10 (B) the term ‘‘covered public accommodation law’’ means— 11 (i) title III of the Americans with Dis- 12 abilities Act of 1990 (42 U.S.C. 12181 et 13 seq.); or 14 (ii) title II of the Civil Rights Act of 15 1964 (42 U.S.C. 2000a et seq.); 16 (C) the term ‘‘place of public accommoda- 17 tion’’ means— 18 (i) a place of public accommodation, 19 as defined in section 201 of the Civil 20 Rights Act of 1964 (42 U.S.C. 2000a); or 21 (ii) a public accommodation, as de- 22 fined in section 301 of the Americans with 23 Disabilities 24 12181); and Act of 1990 (42 U.S.C. HEN20806 NTW S.L.C. 58 1 (D) the term ‘‘public health emergency pe- 2 riod’’ means a period designated a public health 3 emergency period by a Federal, State, or local 4 government authority. 5 (2) ACTIONS 6 7 AND MEASURES DURING A PUBLIC HEALTH EMERGENCY.— (A) IN GENERAL.—Notwithstanding any 8 other provision of law or regulation, during any 9 public health emergency period, no person who 10 owns, leases (or leases to), or operates a place 11 of public accommodation shall be liable under, 12 or found in violation of, any covered public ac- 13 commodation law for any action or measure 14 taken regarding coronavirus and that place of 15 public accommodation, if such person— 16 (i) has determined that the significant 17 risk of substantial harm to public health or 18 the health of employees cannot be reduced 19 or eliminated by reasonably modifying poli- 20 cies, practices, or procedures, or the provi- 21 sion of an auxiliary aid or service; or 22 (ii) has offered such a reasonable 23 modification or auxiliary aid or service but 24 such offer has been rejected by the indi- 25 vidual protected by the covered law. HEN20806 NTW S.L.C. 59 1 (B) REQUIRED WAIVER PROHIBITED.—For 2 purposes of this subsection, no person who 3 owns, leases (or leases to), or operates a place 4 of public accommodation shall be required to 5 waive 6 ommendation that has been adopted in accord- 7 ance with a requirement or recommendation 8 issued by the Federal Government or any State 9 or local government with regard to coronavirus, 10 in order to offer such a reasonable modification 11 or auxiliary aids and services. 12 13 14 any measure, requirement, or rec- SEC. 182. LIABILITY FOR CONDUCTING TESTING AT WORKPLACE. Notwithstanding any other provision of Federal, 15 State, or local law, an employer, or other person who hires 16 or contracts with other individuals to provide services, con17 ducting testing for coronavirus at the workplace shall not 18 be liable for any action or personal injury directly result19 ing from such testing, except for those personal injuries 20 caused by the gross negligence or intentional misconduct 21 of the employer or other person. 22 23 24 SEC. 183. JOINT EMPLOYMENT AND INDEPENDENT CONTRACTING. Notwithstanding any other provision of Federal or 25 State law, including any covered Federal employment law HEN20806 NTW S.L.C. 60 1 (as defined in section 181(a)), the Labor Management Re2 lations Act, 1947 (29 U.S.C. 141 et seq.), the Employ3 ment Retirement Income Security Act of 1974 (29 U.S.C. 4 1001 et seq.), and the Family and Medical Leave Act of 5 1993 (29 U.S.C. 2601 et seq.), it shall not constitute evi6 dence of a joint employment relationship or employment 7 relationship for any employer to provide or require, for 8 an employee of another employer or for an independent 9 contractor, any of the following: 10 11 12 13 14 15 (1) Coronavirus-related policies, procedures, or training. (2) Personal protective equipment or training for the use of such equipment. (3) Cleaning or disinfecting services or the means for such cleaning or disinfecting. 16 (4) Workplace testing for coronavirus. 17 (5) Temporary assistance due to coronavirus, 18 including financial assistance or other health and 19 safety benefits. 20 SEC. 184. EXCLUSION OF CERTAIN NOTIFICATION RE- 21 QUIREMENTS AS A RESULT OF THE COVID–19 22 PUBLIC HEALTH EMERGENCY. 23 (a) DEFINITIONS.—Section 2(a) of the Worker Ad- 24 justment and Retraining Notification Act (29 U.S.C. 25 2101(a)) is amended— HEN20806 NTW S.L.C. 61 1 (1) in paragraph (2), by adding before the 2 semicolon at the end the following: ‘‘and the shut- 3 down, if occurring during the covered period, is not 4 a result of the COVID–19 national emergency’’; 5 (2) in paragraph (3)— 6 7 (A) in subparagraph (A), by striking ‘‘and’’ at the end; 8 9 (B) in subparagraph (B), by adding ‘‘and’’ at the end; and 10 (C) by adding at the end the following: 11 ‘‘(C) if occurring during the covered pe- 12 riod, is not a result of the COVID–19 national 13 emergency;’’; 14 (3) in paragraph (7), by striking ‘‘and’’; 15 (4) in paragraph (8), by striking the period at 16 the end and inserting a semicolon; and 17 (5) by adding at the end the following: 18 ‘‘(9) the term ‘covered period’ means the period 19 that— 20 ‘‘(A) begins on January 1, 2020; and 21 ‘‘(B) ends 90 days after the last date of 22 the COVID–19 national emergency; and 23 ‘‘(10) the term ‘COVID–19 national emergency’ 24 means the national emergency declared by the Presi- 25 dent under the National Emergencies Act (50 HEN20806 NTW S.L.C. 62 1 U.S.C. 1601 et seq.) with respect to the Coronavirus 2 Disease 2019 (COVID–19).’’. 3 (b) EXCLUSION FROM DEFINITION OF EMPLOYMENT 4 LOSS.—Section 2(b) of the Worker Adjustment and Re5 training Notification Act (29 U.S.C. 2101(b)) is amended 6 by adding at the end the following: 7 ‘‘(3) Notwithstanding subsection (a)(6), during 8 the covered period an employee may not be consid- 9 ered to have experienced an employment loss if the 10 termination, layoff exceeding 6 months, or reduction 11 in hours of work of more than 50 percent during 12 each month of any 6-month period involved is a re- 13 sult of the COVID–19 national emergency.’’. 14 TITLE II—PRODUCTS 15 SEC. 201. APPLICABILITY OF THE TARGETED LIABILITY 16 PROTECTIONS 17 DEMIC PRODUCTS AND SECURITY COUNTER- 18 MEASURES WITH RESPECT TO COVID–19. 19 FOR PANDEMIC AND EPI- (a) IN GENERAL.—Section 319F–3(i)(1) of the Pub- 20 lic Health Service Act (42 U.S.C. 247d–6d(i)(1)) is 21 amended— 22 23 24 25 (1) in subparagraph (C), by striking ‘‘; or’’ and inserting a semicolon; (2) in subparagraph (D), by striking the period and inserting ‘‘; or’’; and HEN20806 NTW S.L.C. 63 1 (3) by adding at the end the following: 2 ‘‘(E) a drug (as such term is defined in 3 section 201(g)(1) of the Federal Food, Drug, 4 and Cosmetic Act), biological product (including 5 a vaccine) (as such term is defined in section 6 351(i)), or device (as such term is defined in 7 section 201(h) of the Federal Food, Drug, and 8 Cosmetic Act) that— 9 ‘‘(i) is the subject of a notice of use 10 of enforcement discretion issued by the 11 Secretary if such drug, biological product, 12 or device is used— 13 ‘‘(I) when such notice is in effect; 14 ‘‘(II) within the scope of such no- 15 tice; and 16 ‘‘(III) in compliance with other 17 applicable requirements of the Federal 18 Food, Drug, and Cosmetic Act that 19 are not the subject of such notice; 20 ‘‘(ii) in the case of a device, is exempt 21 from the requirement under section 510(k) 22 of the Federal Food, Drug, and Cosmetic 23 Act; or 24 ‘‘(iii) in the case of a drug— HEN20806 NTW S.L.C. 64 1 ‘‘(I) meets the requirements for 2 marketing under a final administra- 3 tive order under section 505G of the 4 Federal Food, Drug, and Cosmetic 5 Act; or 6 ‘‘(II) is marketed in accordance 7 with section 505G(a)(3) of such Act.’’. 8 (b) CLARIFYING MEANS OF DISTRIBUTION.—Section 9 319F–3(a)(5) of the Public Health Service Act (42 U.S.C. 10 247d–6d(a)(5)) is amended by inserting ‘‘by, or in part11 nership with, Federal, State, or local public health officials 12 or the private sector’’ after ‘‘distribution’’ the first place 13 it appears. 14 (c) NO CHANGE TO ADMINISTRATIVE PROCEDURE 15 ACT APPLICATION TO ENFORCEMENT DISCRETION EXER16 CISE.—Section 319F–3 of the Public Health Service Act 17 (42 U.S.C. 247d–6d) is amended by adding at the end 18 the following: 19 ‘‘(j) RULE OF CONSTRUCTION.—Nothing in this sec- 20 tion shall be construed— 21 ‘‘(1) to require use of procedures described in 22 section 553 of title 5, United States Code, for a no- 23 tice of use of enforcement discretion for which such 24 procedures are not otherwise required; or HEN20806 NTW S.L.C. 65 1 ‘‘(2) to affect whether such notice constitutes 2 final agency action within the meaning of section 3 704 of title 5, United States Code.’’. 4 5 6 7 TITLE III—GENERAL PROVISIONS SEC. 301. SEVERABILITY. If any provision of this Act, an amendment made by 8 this Act, or the application of such a provision or amend9 ment to any person or circumstance is held to be unconsti10 tutional, the remaining provisions of and amendments 11 made by this Act, as well as the application of such provi12 sion or amendment to any person other than the parties 13 to the action holding the provision or amendment to be 14 unconstitutional, or to any circumstances other than those 15 presented in such action, shall not be affected thereby.