[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8832 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 8832
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 HOUSE OF REPRESENTATIVES
December 2, 2020
Mr. Comer introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committees on
Education and Labor, and Energy and Commerce, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Safeguarding
America's Frontline Employees To Offer Work Opportunities Required to
Kickstart the Economy Act'' or the ``SAFE TO WORK Act''.
(b) Table of Contents.--The table of contents for 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. 161. Jurisdiction.
Sec. 162. Limitations on suits.
Sec. 163. Procedures for suit in district courts of the United States.
Sec. 164. Demand letters; cause of action.
Subtitle D--Relation to Labor and Employment Laws
Sec. 181. Limitation on violations under specific laws.
Sec. 182. Liability for conducting testing at workplace.
Sec. 183. Joint employment and independent contracting.
Sec. 184. 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.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds the following:
(1) The SARS-CoV-2 virus that originated in China and
causes the disease COVID-19 has caused untold misery and
devastation throughout the world, including in the United
States.
(2) For months, frontline health care workers and health
care facilities have fought the virus with courage and resolve.
They did so at first with very little information about how to
treat the virus and developed strategies to save lives of the
people of the United States in real time. They risked their
personal health and wellbeing to protect and treat their
patients.
(3) Businesses in the United States kicked into action to
produce and procure personal protective equipment, such as
masks, gloves, face shields, and hand sanitizer, and other
necessary medical supplies, such as ventilators, at
unprecedented rates.
(4) To halt the spread of the disease, State and local
governments took drastic measures. They shut down small and
large businesses, schools, colleges and universities,
religious, philanthropic and other nonprofit institutions, and
local government agencies. They ordered people to remain in
their homes.
(5) This standstill was needed to slow the spread of the
virus. But it devastated the economy of the United States. The
sum of hundreds of local-level and State-level decisions to
close nearly every space in which people might gather brought
interstate commerce nearly to a halt.
(6) This halt led to the loss of millions of jobs. These
lost jobs were not a natural consequence of the economic
environment, but rather the result of a drastic, though
temporary, response to the unprecedented nature of this global
pandemic.
(7) Congress passed a series of statutes to address the
health care and economic crises--the Coronavirus Preparedness
and Response Supplemental Appropriations Act, 2020 (Public Law
116-123; 134 Stat. 146), the Families First Coronavirus
Response Act (Public Law 116-127; 134 Stat. 178), the
Coronavirus Aid, Relief, and Economic Security Act or the CARES
Act (Public Law 116-136), and the Paycheck Protection Program
and Health Care Enhancement Act (Public Law 116-139; 134 Stat.
620). In these laws Congress exercised its power under the
Commerce and Spending Clauses of the Constitution of the United
States to direct trillions of taxpayer dollars toward efforts
to aid workers, businesses, State and local governments, health
care workers, and patients.
(8) This legislation provided short-term insulation from
the worst of the economic storm, but these laws alone cannot
protect the United States from further devastation. Only
reopening the economy so that workers can get back to work and
students can get back to school can accomplish that goal.
(9) The Constitution of the United States specifically
enumerates the legislative powers of Congress. One of those
powers is the regulation of interstate commerce. The Government
is not a substitute for the economy, but it has the authority
and the duty to act when interstate commerce is threatened and
damaged. As applied to the present crisis, Congress can deploy
its power over interstate commerce to promote a prudent
reopening of businesses and other organizations that serve as
the foundation and backbone of the national economy and of
commerce among the States. These include small and large
businesses, schools (which are substantial employers in their
own right and provide necessary services to enable parents and
other caregivers to return to work), colleges and universities
(which are substantial employers and supply the interstate
market for higher-education services), religious, philanthropic
and other nonprofit institutions (which are substantial
employers and provide necessary services to their communities),
and local government agencies.
(10) Congress must also ensure that the Nation's health
care workers and health care facilities are able to act fully
to defeat the virus.
(11) Congress must also safeguard its investment of
taxpayer dollars under the CARES Act and other coronavirus
legislation. Congress must ensure that those funds are used to
help businesses and workers survive and recover from the
economic crisis, and to help health care workers and health
care facilities defeat the virus. CARES Act funds cannot be
diverted from these important purposes to line the pockets of
the trial bar.
(12) One of the chief impediments to the continued flow of
interstate commerce as this public-health crisis has unfolded
is the risk of litigation. Small and large businesses, schools,
colleges and universities, religious, philanthropic and other
nonprofit institutions, and local government agencies confront
the risk of a tidal wave of lawsuits accusing them of exposing
employees, customers, students, and worshipers to coronavirus.
Health care workers face the threat of lawsuits arising from
their efforts to fight the virus.
(13) They confront this litigation risk even as they work
tirelessly to comply with the coronavirus guidance, rules, and
regulations issued by local governments, State governments, and
the Federal Government. They confront this risk notwithstanding
equipment and staffing shortages. And they confront this risk
while also grappling with constantly changing information on
how best to protect employees, customers, students, and
worshipers from the virus, and how best to treat it.
(14) These lawsuits pose a substantial risk to interstate
commerce because they threaten to keep small and large
businesses, schools, colleges and universities, religious,
philanthropic and other nonprofit institutions, and local
government agencies from reopening for fear of expensive
litigation that might prove to be meritless. These lawsuits
further threaten to undermine the Nation's fight against the
virus by exposing our health care workers and health care
facilities to liability for difficult medical decisions they
have made under trying and uncertain circumstances.
(15) These lawsuits also risk diverting taxpayer money
provided under the CARES Act and other coronavirus legislation
from its intended purposes to the pockets of opportunistic
trial lawyers.
(16) This risk is not purely local. It is necessarily
national in scale. A patchwork of local and State rules
governing liability in coronavirus-related lawsuits creates
tremendous unpredictability for everyone participating in
interstate commerce and acts as a significant drag on national
recovery. The aggregation of each individual potential
liability risk poses a substantial and unprecedented threat to
interstate commerce.
(17) The accumulated economic risks for these potential
defendants directly and substantially affects interstate
commerce. Individuals and entities potentially subject to
coronavirus-related liability will structure their decision
making to avoid that liability. Small and large businesses,
schools, colleges and universities, religious, philanthropic
and other nonprofit institutions, and local government agencies
may decline to reopen because of the risk of litigation. They
may limit their output or engagement with customers and
communities to avoid the risk of litigation. These individual
economic decisions substantially affect interstate commerce
because, as a whole, they will prevent the free and fair
exchange of goods and services across State lines. Such
economic activity that, individually and in the aggregate,
substantially affects interstate commerce is precisely the sort
of conduct that should be subject to congressional regulation.
(18) Lawsuits against health care workers and facilities
pose a similarly dangerous risk to interstate commerce.
Interstate commerce will not truly rebound from this crisis
until the virus is defeated, and that will not happen unless
health care workers and facilities are free to combat
vigorously the virus and treat patients with coronavirus and
those otherwise impacted by the response to coronavirus.
(19) Subjecting health care workers and facilities to
onerous litigation even as they have done their level best to
combat a virus about which very little was known when it
arrived in the United States would divert important health care
resources from hospitals and providers to courtrooms.
(20) Such a diversion would substantially affect interstate
commerce by degrading the national capacity for combating the
virus and saving patients, thereby substantially elongating the
period before interstate commerce could fully re-engage.
(21) Congress also has the authority to determine the
jurisdiction of the courts of the United States, to set the
standards for causes of action they can hear, and to establish
the rules by which those causes of action should proceed.
Congress therefore must act to set rules governing liability in
coronavirus-related lawsuits.
(22) These rules necessarily must be temporary and
carefully tailored to the interstate crisis caused by the
coronavirus pandemic. They must extend no further than
necessary to meet this uniquely national crisis for which a
patchwork of State and local tort laws are ill-suited.
(23) Because of the national scope of the economic and
health care dangers posed by the risks of coronavirus-related
lawsuits, establishing temporary rules governing liability for
certain coronavirus-related tort claims is a necessary and
proper means of carrying into execution Congress' power to
regulate commerce among the several States.
(24) Because Congress must safeguard the investment of
taxpayer dollars it made in the CARES Act and other coronavirus
legislation, and ensure that they are used for their intended
purposes and not diverted for other purposes, establishing
temporary rules governing liability for certain coronavirus-
related tort claims is a necessary and proper means of carrying
into execution Congress' power to provide for the general
welfare of the United States.
(b) Purposes.--Pursuant to the powers delegated to Congress by
article I, section 8, clauses 1, 3, 9, and 18, and article III, section
2, clause 1 of the Constitution of the United States, the purposes of
this Act are to--
(1) establish necessary and consistent standards for
litigating certain claims specific to the unique coronavirus
pandemic;
(2) prevent the overburdening of the court systems with
undue litigation;
(3) encourage planning, care, and appropriate risk
management by small and large businesses, schools, colleges and
universities, religious, philanthropic and other nonprofit
institutions, local government agencies, and health care
providers;
(4) ensure that the Nation's recovery from the coronavirus
economic crisis is not burdened or slowed by the substantial
risk of litigation;
(5) prevent litigation brought to extract settlements and
enrich trial lawyers rather than vindicate meritorious claims;
(6) protect interstate commerce from the burdens of
potentially meritless litigation;
(7) ensure the economic recovery proceeds without
artificial and unnecessary delay;
(8) protect the interests of the taxpayers by ensuring that
emergency taxpayer support continues to aid businesses,
workers, and health care providers rather than enrich trial
lawyers; and
(9) protect the highest and best ideals of the national
economy, so businesses can produce and serve their customers,
workers can work, teachers can teach, students can learn, and
believers can worship.
SEC. 3. DEFINITIONS.
In this Act:
(1) Applicable government standards and guidance.--The term
``applicable government standards and guidance'' means--
(A) any mandatory standards or regulations
specifically concerning the prevention or mitigation of
the transmission of coronavirus issued by the Federal
Government, or a State or local government with
jurisdiction over an individual or entity, whether
provided by executive, judicial, or legislative order;
and
(B) with respect to an individual or entity that,
at the time of the actual, alleged, feared, or
potential for exposure to coronavirus is not subject to
any mandatory standards or regulations described in
subparagraph (A), any guidance, standards, or
regulations specifically concerning the prevention or
mitigation of the transmission of coronavirus issued by
the Federal Government, or a State or local government
with jurisdiction over the individual or entity.
(2) Businesses, services, activities, or accommodations.--
The term ``businesses, services, activities, or
accommodations'' means any act by an individual or entity,
irrespective of whether the act is carried on for profit, that
is interstate or foreign commerce, that involves persons or
things in interstate or foreign commerce, that involves the
channels or instrumentalities of interstate or foreign
commerce, that substantially affects interstate or foreign
commerce, or that is otherwise an act subject to regulation by
Congress as necessary and proper to carry into execution
Congress' powers to regulate interstate or foreign commerce or
to spend funds for the general welfare.
(3) Coronavirus.--The term ``coronavirus'' means any
disease, health condition, or threat of harm caused by the
SARS-CoV-2 virus or a virus mutating therefrom.
(4) Coronavirus exposure action.--
(A) In general.--The term ``coronavirus exposure
action'' means a civil action--
(i) brought by a person who suffered
personal injury or is at risk of suffering
personal injury, or a representative of a
person who suffered personal injury or is at
risk of suffering personal injury;
(ii) brought against an individual or
entity engaged in businesses, services,
activities, or accommodations; and
(iii) alleging that an actual, alleged,
feared, or potential for exposure to
coronavirus caused the personal injury or risk
of personal injury, that--
(I) occurred in the course of the
businesses, services, activities, or
accommodations of the individual or
entity; and
(II) occurred--
(aa) on or after December
1, 2019; and
(bb) before the later of--
(AA) October 1,
2024; or
(BB) the date on
which there is no
declaration by the
Secretary of Health and
Human Services under
section 319F-3(b) of
the Public Health
Service Act (42 U.S.C.
247d-6d(b)) (relating
to medical
countermeasures) that
is in effect with
respect to coronavirus,
including the
Declaration Under the
Public Readiness and
Emergency Preparedness
Act for Medical
Countermeasures Against
COVID-19 (85 Fed. Reg.
15198) issued by the
Secretary of Health and
Human Services on March
17, 2020.
(B) Exclusions.--The term ``coronavirus exposure
action'' does not include--
(i) a criminal, civil, or administrative
enforcement action brought by the Federal
Government or any State, local, or Tribal
government; or
(ii) a claim alleging intentional
discrimination on the basis of race, color,
national origin, religion, sex (including
pregnancy), disability, genetic information, or
age.
(5) Coronavirus-related action.--The term ``coronavirus-
related action'' means a coronavirus exposure action or a
coronavirus-related medical liability action.
(6) Coronavirus-related health care services.--The term
``coronavirus-related health care services'' means services
provided by a health care provider, regardless of the location
where the services are provided, that relate to--
(A) the diagnosis, prevention, or treatment of
coronavirus;
(B) the assessment or care of an individual with a
confirmed or suspected case of coronavirus; or
(C) the care of any individual who is admitted to,
presents to, receives services from, or resides at, a
health care provider for any purpose during the period
of a Federal emergency declaration concerning
coronavirus, if such provider's decisions or activities
with respect to such individual are impacted as a
result of coronavirus.
(7) Coronavirus-related medical liability action.--
(A) In general.--The term ``coronavirus-related
medical liability action'' means a civil action--
(i) brought by a person who suffered
personal injury, or a representative of a
person who suffered personal injury;
(ii) brought against a health care
provider; and
(iii) alleging any harm, damage, breach, or
tort resulting in the personal injury alleged
to have been caused by, be arising out of, or
be related to a health care provider's act or
omission in the course of arranging for or
providing coronavirus-related health care
services that occurred--
(I) on or after December 1, 2019;
and
(II) before the later of--
(aa) October 1, 2024; or
(bb) the date on which
there is no declaration by the
Secretary of Health and Human
Services under section 319F-
3(b) of the Public Health
Service Act (42 U.S.C. 247d-
6d(b)) (relating to covered
countermeasures) that is in
effect with respect to
coronavirus, including the
Declaration Under the Public
Readiness and Emergency
Preparedness Act for Medical
Countermeasures Against COVID-
19 (85 Fed. Reg. 15198) issued
by the Secretary of Health and
Human Services on March 17,
2020.
(B) Exclusions.--The term ``coronavirus-related
medical liability action'' does not include--
(i) a criminal, civil, or administrative
enforcement action brought by the Federal
Government or any State, local, or Tribal
government; or
(ii) a claim alleging intentional
discrimination on the basis of race, color,
national origin, religion, sex (including
pregnancy), disability, genetic information, or
age.
(8) Employer.--The term ``employer''--
(A) means any person serving as an employer or
acting directly in the interest of an employer in
relation to an employee;
(B) includes a public agency; and
(C) does not include any labor organization (other
than when acting as an employer) or any person acting
in the capacity of officer or agent of such labor
organization.
(9) Government.--The term ``government'' means an agency,
instrumentality, or other entity of the Federal Government, a
State government (including multijurisdictional agencies,
instrumentalities, and entities), a local government, or a
Tribal government.
(10) Gross negligence.--The term ``gross negligence'' means
a conscious, voluntary act or omission in reckless disregard
of--
(A) a legal duty;
(B) the consequences to another party; and
(C) applicable government standards and guidance.
(11) Harm.--The term ``harm'' includes--
(A) physical and nonphysical contact that results
in personal injury to an individual; and
(B) economic and noneconomic losses.
(12) Health care provider.--
(A) In general.--The term ``health care provider''
means any person, including an agent, volunteer
(subject to subparagraph (C)), contractor, employee, or
other entity, who is--
(i) required by Federal or State law to be
licensed, registered, or certified to provide
health care and is so licensed, registered, or
certified (or is exempt from any such
requirement);
(ii) otherwise authorized by Federal or
State law to provide care (including services
and supports furnished in a home or community-
based residential setting under the State
Medicaid program or a waiver of that program);
or
(iii) considered under applicable Federal
or State law to be a health care provider,
health care professional, health care
institution, or health care facility.
(B) Inclusion of administrators, supervisors,
etc.--The term ``health care provider'' includes a
health care facility administrator, executive,
supervisor, board member or trustee, or another
individual responsible for directing, supervising, or
monitoring the provision of coronavirus-related health
care services in a comparable role.
(C) Inclusion of volunteers.--The term ``health
care provider'' includes volunteers that meet the
following criteria:
(i) The volunteer is a health care
professional providing coronavirus-related
health care services.
(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--
(aa) are within the scope
of the license, registration,
or certification of the
volunteer, as defined by the
State of licensure,
registration, or certification;
and
(bb) do not exceed the
scope of license, registration,
or certification of a
substantially similar health
professional in the State in
which such act or omission
occurs; and
(IV) in a good-faith belief that
the individual being treated is in need
of health care services.
(13) Individual or entity.--The term ``individual or
entity'' means--
(A) any natural person, corporation, company,
trade, business, firm, partnership, joint stock
company, educational institution, labor organization,
or similar organization or group of organizations;
(B) any nonprofit organization, foundation,
society, or association organized for religious,
charitable, educational, or other purposes; or
(C) any State, Tribal, or local government.
(14) Local government.--The term ``local government'' means
any unit of government within a State, including a--
(A) county;
(B) borough;
(C) municipality;
(D) city;
(E) town;
(F) township;
(G) parish;
(H) local public authority, including any public
housing agency under the United States Housing Act of
1937 (42 U.S.C. 1437 et seq.);
(I) special district;
(J) school district;
(K) intrastate district;
(L) council of governments, whether or not
incorporated as a nonprofit corporation under State
law; and
(M) agency or instrumentality of--
(i) multiple units of local government
(including units of local government located in
different States); or
(ii) an intra-State unit of local
government.
(15) Mandatory.--The term ``mandatory'', with respect to
standards or regulations, means the standards or regulations
are themselves enforceable by the issuing government through
criminal, civil, or administrative action.
(16) Personal injury.--The term ``personal injury''--
(A) means actual or potential physical injury to an
individual or death caused by a physical injury; and
(B) includes mental suffering, emotional distress,
or similar injuries suffered by an individual in
connection with a physical injury.
(17) State.--The term ``State''--
(A) means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico,
the Northern Mariana Islands, the United States Virgin
Islands, Guam, American Samoa, and any other territory
or possession of the United States, and any political
subdivision or instrumentality thereof; and
(B) includes any agency or instrumentality of 2 or
more of the entities described in subparagraph (A).
(18) Tribal government.--
(A) In general.--The term ``Tribal government''
means the recognized governing body of any Indian tribe
included on the list published by the Secretary of the
Interior pursuant to section 104(a) of the Federally
Recognized Indian Tribe List Act of 1994 (25 U.S.C.
5131(a)).
(B) Inclusion.--The term ``Tribal government''
includes any subdivision (regardless of the laws and
regulations of the jurisdiction in which the
subdivision is organized or incorporated) of a
governing body described in subparagraph (A) that--
(i) is wholly owned by that governing body;
and
(ii) has been delegated the right to
exercise one or more substantial governmental
functions of the governing body.
(19) Willful misconduct.--The term ``willful misconduct''
means an act or omission that is taken--
(A) intentionally to achieve a wrongful purpose;
(B) knowingly without legal or factual
justification; and
(C) in disregard of a known or obvious risk that is
so great as to make it highly probable that the harm
will outweigh the benefit.
TITLE I--LIABILITY RELIEF
Subtitle A--Liability Limitations for Individuals and Entities Engaged
in Businesses, Services, Activities, or Accommodations
SEC. 121. APPLICATION OF SUBTITLE.
(a) Cause of Action; Tribal Sovereign Immunity.--
(1) Cause of action.--
(A) In general.--This subtitle creates an exclusive
cause of action for coronavirus exposure actions.
(B) Liability.--A plaintiff may prevail in a
coronavirus exposure action only in accordance with the
requirements of this title.
(C) Application.--The provisions of this subtitle
shall apply to--
(i) any cause of action that is a
coronavirus exposure action that was filed
before the date of enactment of this Act and
that is pending on such date of enactment; and
(ii) any coronavirus exposure action filed
on or after such date of enactment.
(2) Preservation of liability limits and defenses.--Except
as otherwise explicitly provided in this subtitle, nothing in
this subtitle expands any liability otherwise imposed or limits
any defense otherwise available under Federal, State, or Tribal
law.
(3) Immunity.--Nothing in this subtitle abrogates the
immunity of any State, or waives the immunity of any Tribal
government. The limitations on liability provided under this
subtitle shall control in any action properly filed against a
State or Tribal government pursuant to a duly executed waiver
by the State or Tribe of sovereign immunity and stating claims
within the scope of this subtitle.
(b) Preemption and Supersedure.--
(1) In general.--Except as described in paragraphs (2)
through (6), this subtitle preempts and supersedes any Federal,
State, or Tribal law, including statutes, regulations, rules,
or standards that are enacted, promulgated, or established
under common law, related to recovery for personal injuries
caused by actual, alleged, feared, or potential for exposure to
coronavirus.
(2) Stricter laws not preempted or superseded.--Nothing in
this subtitle shall be construed to affect the applicability of
any provision of any Federal, State, or Tribal law that imposes
stricter limits on damages or liabilities for personal injury
caused by, arising out of, or related to an actual, alleged,
feared, or potential for exposure to coronavirus, or otherwise
affords greater protection to defendants in any coronavirus
exposure action, than are provided in this subtitle. Any such
provision of Federal, State, or Tribal law shall be applied in
addition to the requirements of this subtitle and not in lieu
thereof.
(3) Workers' compensation laws not preempted or
superseded.--Nothing in this subtitle shall be construed to
affect the applicability of any State or Tribal law providing
for a workers' compensation scheme or program, or to preempt or
supersede an exclusive remedy under such scheme or program.
(4) Enforcement actions.--Nothing in this subtitle shall be
construed to impair, limit, or affect the authority of the
Federal Government, or of any State, local, or Tribal
government, to bring any criminal, civil, or administrative
enforcement action against any individual or entity.
(5) Discrimination claims.--Nothing in this subtitle shall
be construed to affect the applicability of any provision of
any Federal, State, or Tribal law that creates a cause of
action for intentional discrimination on the basis of race,
color, national origin, religion, sex (including pregnancy),
disability, genetic information, or age.
(6) Maintenance and cure.--Nothing in this subtitle shall
be construed to affect a seaman's right to claim maintenance
and cure benefits.
(c) Statute of Limitations.--A coronavirus exposure action may not
be commenced in any Federal, State, or Tribal government court later
than 1 year after the date of the actual, alleged, feared, or potential
for exposure to coronavirus.
SEC. 122. LIABILITY; SAFE HARBOR.
(a) Requirements for Liability for Exposure to Coronavirus.--
Notwithstanding any other provision of law, and except as otherwise
provided in this section, no individual or entity engaged in
businesses, services, activities, or accommodations shall be liable in
any coronavirus exposure action unless the plaintiff can prove by clear
and convincing evidence that--
(1) in engaging in the businesses, services, activities, or
accommodations, the individual or entity was not making
reasonable efforts in light of all the circumstances to comply
with the applicable government standards and guidance in effect
at the time of the actual, alleged, feared, or potential for
exposure to coronavirus;
(2) the individual or entity engaged in gross negligence or
willful misconduct that caused an actual exposure to
coronavirus; and
(3) the actual exposure to coronavirus caused the personal
injury of the plaintiff.
(b) Reasonable Efforts To Comply.--
(1) Conflicting applicable government standards and
guidance.--
(A) In general.--If more than 1 government to whose
jurisdiction an individual or entity is subject issues
applicable government standards and guidance, and the
applicable government standards and guidance issued by
one or more of the governments conflicts with the
applicable government standards and guidance issued by
one or more of the other governments, the individual or
entity shall be considered to have made reasonable
efforts in light of all the circumstances to comply
with the applicable government standards and guidance
for purposes of subsection (a)(1) unless the plaintiff
establishes by clear and convincing evidence that the
individual or entity was not making reasonable efforts
in light of all the circumstances to comply with any of
the conflicting applicable government standards and
guidance issued by any government to whose jurisdiction
the individual or entity is subject.
(B) Exception.--If mandatory standards and
regulations constituting applicable government
standards and guidance issued by any government with
jurisdiction over the individual or entity conflict
with applicable government standards and guidance that
are not mandatory and are issued by any other
government with jurisdiction over the individual or
entity or by the same government that issued the
mandatory standards and regulations, the plaintiff may
establish that the individual or entity did not make
reasonable efforts in light of all the circumstances to
comply with the applicable government standards and
guidance for purposes of subsection (a)(1) by
establishing by clear and convincing evidence that the
individual or entity was not making reasonable efforts
in light of all the circumstances to comply with the
mandatory standards and regulations to which the
individual or entity was subject.
(2) Written or published policy.--
(A) In general.--If an individual or entity engaged
in businesses, services, activities, or accommodations
maintained a written or published policy on the
mitigation of transmission of coronavirus at the time
of the actual, alleged, feared, or potential for
exposure to coronavirus that complied with, or was more
protective than, the applicable government standards
and guidance to which the individual or entity was
subject, the individual or entity shall be presumed to
have made reasonable efforts in light of all the
circumstances to comply with the applicable government
standards and guidance for purposes of subsection
(a)(1).
(B) Rebuttal.--The plaintiff may rebut the
presumption under subparagraph (A) by establishing that
the individual or entity was not complying with the
written or published policy at the time of the actual,
alleged, feared, or potential for exposure to
coronavirus.
(C) Absence of a written or published policy.--The
absence of a written or published policy shall not give
rise to a presumption that the individual or entity did
not make reasonable efforts in light of all the
circumstances to comply with the applicable government
standards and guidance for purposes of subsection
(a)(1).
(3) Timing.--For purposes of subsection (a)(1), a change to
a policy or practice by an individual or entity before or after
the actual, alleged, feared, or potential for exposure to
coronavirus, shall not be evidence of liability for the actual,
alleged, feared, or potential for exposure to coronavirus.
(c) Third Parties.--No individual or entity shall be held liable in
a coronavirus exposure action for the acts or omissions of a third
party, unless--
(1) the individual or entity had an obligation under
general common law principles to control the acts or omissions
of the third party; or
(2) the third party was an agent of the individual or
entity.
(d) Mitigation.--Changes to the policies, practices, or procedures
of an individual or entity for complying with the applicable government
standards and guidance after the time of the actual, alleged, feared,
or potential for exposure to coronavirus, shall not be considered
evidence of liability or culpability.
Subtitle B--Liability Limitations for Health Care Providers
SEC. 141. APPLICATION OF SUBTITLE.
(a) In General.--
(1) Cause of action.--
(A) In general.--This subtitle creates an exclusive
cause of action for coronavirus-related medical
liability actions.
(B) Liability.--A plaintiff may prevail in a
coronavirus-related medical liability action only in
accordance with the requirements of this title.
(C) Application.--The provisions of this subtitle
shall apply to--
(i) any cause of action that is a
coronavirus-related medical liability action
that was filed before the date of enactment of
this Act and that is pending on such date of
enactment; and
(ii) any coronavirus-related medical
liability action filed on or after such date of
enactment.
(2) Preservation of liability limits and defenses.--Except
as otherwise explicitly provided in this subtitle, nothing in
this subtitle expands any liability otherwise imposed or limits
any defense otherwise available under Federal, State, or Tribal
law.
(3) Immunity.--Nothing in this subtitle abrogates the
immunity of any State, or waives the immunity of any Tribal
government. The limitations on liability provided under this
subtitle shall control in any action properly filed against a
State or Tribal government pursuant to a duly executed waiver
by the State or Tribe of sovereign immunity and stating claims
within the scope of this subtitle.
(b) Preemption and Supersedure.--
(1) In general.--Except as described in paragraphs (2)
through (6), this subtitle preempts and supersedes any Federal,
State, or Tribal law, including statutes, regulations, rules,
or standards that are enacted, promulgated, or established
under common law, related to recovery for personal injuries
caused by, arising out of, or related to an act or omission by
a health care provider in the course of arranging for or
providing coronavirus-related health care services.
(2) Stricter laws not preempted or superseded.--Nothing in
this subtitle shall be construed to affect the applicability of
any provision of any Federal, State, or Tribal law that imposes
stricter limits on damages or liabilities for personal injury
caused by, arising out of, or related to an act or omission by
a health care provider in the course of arranging for or
providing coronavirus-related health care services, or
otherwise affords greater protection to defendants in any
coronavirus-related medical liability action than are provided
in this subtitle. Any such provision of Federal, State, or
Tribal law shall be applied in addition to the requirements of
this subtitle and not in lieu thereof.
(3) Enforcement actions.--Nothing in this subtitle shall be
construed to impair, limit, or affect the authority of the
Federal Government, or of any State, local, or Tribal
government to bring any criminal, civil, or administrative
enforcement action against any health care provider.
(4) Discrimination claims.--Nothing in this subtitle shall
be construed to affect the applicability of any provision of
any Federal, State, or Tribal law that creates a cause of
action for intentional discrimination on the basis of race,
color, national origin, religion, sex (including pregnancy),
disability, genetic information, or age.
(5) Public readiness and emergency preparedness.--Nothing
in this subtitle shall be construed to affect the applicability
of section 319F-3 of the Public Health Service Act (42 U.S.C.
247d-6d) to any act or omission involving a covered
countermeasure, as defined in subsection (i) of such section in
arranging for or providing coronavirus-related health care
services. Nothing in this subtitle shall be construed to affect
the applicability of section 319F-4 of the Public Health
Service Act (42 U.S.C. 247d-6e).
(6) Vaccine injury.--To the extent that title XXI of the
Public Health Service Act (42 U.S.C. 300aa-1 et seq.)
establishes a Federal rule applicable to a civil action brought
for a vaccine-related injury or death, this subtitle does not
affect the application of that rule to such an action.
(c) Statute of Limitations.--A coronavirus-related medical
liability action may not be commenced in any Federal, State, or Tribal
government court later than 1 year after the date of the alleged harm,
damage, breach, or tort, unless tolled for--
(1) proof of fraud;
(2) intentional concealment; or
(3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of
the injured person.
SEC. 142. LIABILITY FOR HEALTH CARE PROFESSIONALS AND HEALTH CARE
FACILITIES DURING CORONAVIRUS PUBLIC HEALTH EMERGENCY.
(a) Requirements for Liability for Coronavirus-Related Health Care
Services.--Notwithstanding any other provision of law, and except as
provided in subsection (b), no health care provider shall be liable in
a coronavirus-related medical liability action unless the plaintiff can
prove by clear and convincing evidence--
(1) gross negligence or willful misconduct by the health
care provider; and
(2) that the alleged harm, damage, breach, or tort
resulting in the personal injury was directly caused by the
alleged gross negligence or willful misconduct.
(b) Exceptions.--For purposes of this section, acts, omissions, or
decisions resulting from a resource or staffing shortage shall not be
considered willful misconduct or gross negligence.
Subtitle C--Substantive and Procedural Provisions for Coronavirus-
Related Actions Generally
SEC. 161. JURISDICTION.
(a) Jurisdiction.--The district courts of the United States shall
have concurrent original jurisdiction of any coronavirus-related
action.
(b) Removal.--
(1) In general.--A coronavirus-related action of which the
district courts of the United States have original jurisdiction
under subsection (a) that is brought in a State or Tribal
government court may be removed to a district court of the
United States in accordance with section 1446 of title 28,
United States Code, except that--
(A) notwithstanding subsection (b)(2)(A) of such
section, such action may be removed by any defendant
without the consent of all defendants; and
(B) notwithstanding subsection (b)(1) of such
section, for any cause of action that is a coronavirus-
related action that was filed in a State court before
the date of enactment of this Act and that is pending
in such court on such date of enactment, and of which
the district courts of the United States have original
jurisdiction under subsection (a), any defendant may
file a notice of removal of a civil action or
proceeding within 30 days of the date of enactment of
this Act.
(2) Procedure after removal.--Section 1447 of title 28,
United States Code, shall apply to any removal of a case under
paragraph (1), except that, notwithstanding subsection (d) of
such section, a court of appeals of the United States shall
accept an appeal from an order of a district court granting or
denying a motion to remand the case to the State or Tribal
government court from which it was removed if application is
made to the court of appeals of the United States not later
than 10 days after the entry of the order.
SEC. 162. LIMITATIONS ON SUITS.
(a) Joint and Several Liability Limitations.--
(1) In general.--An individual or entity against whom a
final judgment is entered in any coronavirus-related action
shall be liable solely for the portion of the judgment that
corresponds to the relative and proportionate responsibility of
that individual or entity. In determining the percentage of
responsibility of any defendant, the trier of fact shall
determine that percentage as a percentage of the total fault of
all individuals or entities, including the plaintiff, who
caused or contributed to the total loss incurred by the
plaintiff.
(2) Proportionate liability.--
(A) Determination of responsibility.--In any
coronavirus-related action, the court shall instruct
the jury to answer special interrogatories, or, if
there is no jury, the court shall make findings with
respect to each defendant, including defendants who
have entered into settlements with the plaintiff or
plaintiffs, concerning the percentage of
responsibility, if any, of each defendant, measured as
a percentage of the total fault of all individuals or
entities who caused or contributed to the loss incurred
by the plaintiff.
(B) Factors for consideration.--In determining the
percentage of responsibility under this subsection, the
trier of fact shall consider--
(i) the nature of the conduct of each
individual or entity found to have caused or
contributed to the loss incurred by the
plaintiff; and
(ii) the nature and extent of the causal
relationship between the conduct of each such
individual or entity and the damages incurred
by the plaintiff.
(3) Joint liability for specific intent or fraud.--
Notwithstanding paragraph (1), in any coronavirus-related
action the liability of a defendant is joint and several if the
trier of fact specifically determines that the defendant--
(A) acted with specific intent to injure the
plaintiff; or
(B) knowingly committed fraud.
(4) Right to contribution not affected.--Nothing in this
subsection affects the right, under any other law, of a
defendant to contribution with respect to another defendant
determined under paragraph (3) to have acted with specific
intent to injure the plaintiff or to have knowingly committed
fraud.
(b) Limitations on Damages.--In any coronavirus-related action--
(1) the award of compensatory damages shall be limited to
economic losses incurred as the result of the personal injury,
harm, damage, breach, or tort, except that the court may award
damages for noneconomic losses if the trier of fact determines
that the personal injury, harm, damage, breach, or tort was
caused by the willful misconduct of the individual or entity;
(2) punitive damages--
(A) may be awarded only if the trier of fact
determines that the personal injury to the plaintiff
was caused by the willful misconduct of the individual
or entity; and
(B) may not exceed the amount of compensatory
damages awarded; and
(3) the amount of monetary damages awarded to a plaintiff
shall be reduced by the amount of compensation received by the
plaintiff from another source in connection with the personal
injury, harm, damage, breach, or tort, such as insurance or
reimbursement by a government.
(c) Preemption and Supersedure.--
(1) In general.--Except as described in paragraphs (2) and
(3), this section preempts and supersedes any Federal, State,
or Tribal law, including statutes, regulations, rules, or
standards that are enacted, promulgated, or established under
common law, related to joint and several liability,
proportionate or contributory liability, contribution, or the
award of damages for any coronavirus-related action.
(2) Stricter laws not preempted or superseded.--Nothing in
this section shall be construed to affect the applicability of
any provision of any Federal, State, or Tribal law that--
(A) limits the liability of a defendant in a
coronavirus-related action to a lesser degree of
liability than the degree of liability determined under
this section;
(B) otherwise affords a greater degree of
protection from joint or several liability than is
afforded by this section; or
(C) limits the damages that can be recovered from a
defendant in a coronavirus-related action to a lesser
amount of damages than the amount determined under this
section.
(3) Public readiness and emergency preparedness.--Nothing
in this subtitle shall be construed to affect the applicability
of section 319F-3 of the Public Health Service Act (42 U.S.C.
247d-6d) to any act or omission involving a covered
countermeasure, as defined in subsection (i) of such section in
arranging for or providing coronavirus-related health care
services. Nothing in this subtitle shall be construed to affect
the applicability of section 319F-4 of the Public Health
Service Act (42 U.S.C. 247d-6e).
SEC. 163. PROCEDURES FOR SUIT IN DISTRICT COURTS OF THE UNITED STATES.
(a) Pleading With Particularity.--In any coronavirus-related action
filed in or removed to a district court of the United States--
(1) the complaint shall plead with particularity--
(A) each element of the plaintiff's claim; and
(B) with respect to a coronavirus exposure action,
all places and persons visited by the person on whose
behalf the complaint was filed and all persons who
visited the residence of the person on whose behalf the
complaint was filed during the 14-day-period before the
onset of the first symptoms allegedly caused by
coronavirus, including--
(i) each individual or entity against which
a complaint is filed, along with the factual
basis for the belief that such individual or
entity was a cause of the personal injury
alleged; and
(ii) every other person or place visited by
the person on whose behalf the complaint was
filed and every other person who visited the
residence of the person on whose behalf the
complaint was filed during such period, along
with the factual basis for the belief that
these persons and places were not the cause of
the personal injury alleged; and
(2) the complaint shall plead with particularity each
alleged act or omission constituting gross negligence or
willful misconduct that resulted in personal injury, harm,
damage, breach, or tort.
(b) Separate Statements Concerning the Nature and Amount of Damages
and Required State of Mind.--
(1) Nature and amount of damages.--In any coronavirus-
related action filed in or removed to a district court of the
United States in which monetary damages are requested, there
shall be filed with the complaint a statement of specific
information as to the nature and amount of each element of
damages and the factual basis for the damages calculation.
(2) Required state of mind.--In any coronavirus-related
action filed in or removed to a district court of the United
States in which a claim is asserted on which the plaintiff may
prevail only on proof that the defendant acted with a
particular state of mind, there shall be filed with the
complaint, with respect to each element of that claim, a
statement of the facts giving rise to a strong inference that
the defendant acted with the required state of mind.
(c) Verification and Medical Records.--
(1) Verification requirement.--
(A) In general.--The complaint in a coronavirus-
related action filed in or removed to a district court
of the United States shall include a verification, made
by affidavit of the plaintiff under oath, stating that
the pleading is true to the knowledge of the deponent,
except as to matters specifically identified as being
alleged on information and belief, and that as to those
matters the plaintiff believes it to be true.
(B) Identification of matters alleged upon
information and belief.--Any matter that is not
specifically identified as being alleged upon the
information and belief of the plaintiff, shall be
regarded for all purposes, including a criminal
prosecution, as having been made upon the knowledge of
the plaintiff.
(2) Materials required.--In any coronavirus-related action
filed in or removed to a district court of the United States,
the plaintiff shall file with the complaint--
(A) an affidavit by a physician or other qualified
medical expert who did not treat the person on whose
behalf the complaint was filed that explains the basis
for such physician's or other qualified medical
expert's belief that such person suffered the personal
injury, harm, damage, breach, or tort alleged in the
complaint; and
(B) certified medical records documenting the
alleged personal injury, harm, damage, breach, or tort.
(d) Application With Federal Rules of Civil Procedure.--This
section applies exclusively to any coronavirus-related action filed in
or removed to a district court of the United States and, except to the
extent that this section requires additional information to be
contained in or attached to pleadings, nothing in this section is
intended to amend or otherwise supersede applicable rules of Federal
civil procedure.
(e) Civil Discovery for Actions in District Courts of the United
States.--
(1) Timing.--Notwithstanding any other provision of law, in
any coronavirus-related action filed in or removed to a
district court of the United States, no discovery shall be
allowed before--
(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 court has
ruled on the motion.
(2) Standard.--Notwithstanding any other provision of law,
the court in any coronavirus-related action that is filed in or
removed to a district court of the United States--
(A) shall permit discovery only with respect to
matters directly related to material issues contested
in the coronavirus-related action; and
(B) may compel a response to a discovery request
(including a request for admission, an interrogatory, a
request for production of documents, or any other form
of discovery request) under rule 37 of the Federal
Rules of Civil Procedure, only if the court finds
that--
(i) the requesting party needs the
information sought to prove or defend as to a
material issue contested in such action; and
(ii) the likely benefits of a response to
such request equal or exceed the burden or cost
for the responding party of providing such
response.
(f) Interlocutory Appeal and Stay of Discovery.--The courts of
appeals of the United States shall have jurisdiction of an appeal from
a motion to dismiss that is denied in any coronavirus-related action in
a district court of the United States. The district court shall stay
all discovery in such a coronavirus-related action until the court of
appeals has disposed of the appeal.
(g) Class Actions and Multidistrict Litigation Proceedings.--
(1) Class actions.--In any coronavirus-related action that
is filed in or removed to a district court of the United States
and is maintained as a class action or multidistrict
litigation--
(A) an individual or entity shall only be a member
of the class if the individual or entity affirmatively
elects to be a member; and
(B) the court, in addition to any other notice
required by applicable Federal or State law, shall
direct notice of the action to each member of the
class, which shall include--
(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--
(I) the hourly fee being charged;
or
(II) if it is a contingency fee,
the percentage of the final award which
will be paid, including an estimate of
the total amount that would be paid if
the requested damages were to be
granted; and
(III) if the cost of the litigation
is being financed, a description of the
financing arrangement.
(2) Multidistrict litigations.--
(A) Trial prohibition.--In any coordinated or
consolidated pretrial proceedings conducted pursuant to
section 1407(b) of title 28, United States Code, the
judge or judges to whom coronavirus-related actions are
assigned by the Judicial Panel on Multidistrict
Litigation may not conduct a trial in a coronavirus-
related action transferred to or directly filed in the
proceedings unless all parties to that coronavirus-
related action consent.
(B) Review of orders.--The court of appeals of the
United States having jurisdiction over the transferee
district court shall permit an appeal to be taken from
any order issued in the conduct of coordinated or
consolidated pretrial proceedings conducted pursuant to
section 1407(b) of title 28, United States Code, if the
order is applicable to one or more coronavirus-related
actions and an immediate appeal from the order may
materially advance the ultimate termination of one or
more coronavirus-related actions in the proceedings.
SEC. 164. DEMAND LETTERS; CAUSE OF ACTION.
(a) Cause of Action.--If any person transmits or causes another to
transmit in any form and by any means a demand for remuneration in
exchange for settling, releasing, waiving, or otherwise not pursuing a
claim that is, or could be, brought as part of a coronavirus-related
action, the party receiving such a demand shall have a cause of action
for the recovery of damages occasioned by such demand and for
declaratory judgment in accordance with chapter 151 of title 28, United
States Code, if the claim for which the letter was transmitted was
meritless.
(b) Damages.--Damages available under subsection (a) shall
include--
(1) compensatory damages including costs incurred in
responding to the demand; and
(2) punitive damages, if the court determines that the
defendant had knowledge or was reckless with regard to the fact
that the claim was meritless.
(c) Attorney's Fees and Costs.--In an action commenced under
subsection (a), if the plaintiff is a prevailing party, the court
shall, in addition to any judgment awarded to a plaintiff, allow a
reasonable attorney's fee to be paid by the defendant, and costs of the
action.
(d) Jurisdiction.--The district courts of the United States shall
have concurrent original jurisdiction of all claims arising under
subsection (a).
(e) Enforcement by the Attorney General.--
(1) In general.--Whenever the Attorney General has
reasonable cause to believe that any person or group of persons
is engaged in a pattern or practice of transmitting demands for
remuneration in exchange for settling, releasing, waiving, or
otherwise not pursuing a claim that is, or could be, brought as
part of a coronavirus-related action and that is meritless, the
Attorney General may commence a civil action in any appropriate
district court of the United States.
(2) Relief.--In a civil action under paragraph (1), the
court may, to vindicate the public interest, assess a civil
penalty against the respondent in an amount not exceeding
$50,000 per transmitted demand for remuneration in exchange for
settling, releasing, waiving, or otherwise not pursuing a claim
that is meritless.
(3) Distribution of civil penalties.--If the Attorney
General obtains civil penalties in accordance with paragraph
(2), the Attorney General shall distribute the proceeds
equitably among those persons aggrieved by the respondent's
pattern or practice of transmitting demands for remuneration in
exchange for settling, releasing, waiving, or otherwise not
pursuing a claim that is meritless.
Subtitle D--Relation to Labor and Employment Laws
SEC. 181. LIMITATION ON VIOLATIONS UNDER SPECIFIC LAWS.
(a) In General.--
(1) Definition.--In this subsection, the term ``covered
Federal employment law'' means any of the following:
(A) The Occupational Safety and Health Act of 1970
(29 U.S.C. 651 et seq.) (including any standard
included in a State plan approved under section 18 of
such Act (29 U.S.C. 667)).
(B) The Fair Labor Standards Act of 1938 (29 U.S.C.
201 et seq.).
(C) The Age Discrimination in Employment Act of
1967 (29 U.S.C. 621 et seq.).
(D) The Worker Adjustment and Retraining
Notification Act (29 U.S.C. 2101 et seq.).
(E) Title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.).
(F) Title II of the Genetic Information
Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et
seq.).
(G) Title I of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12111 et seq.).
(2) Limitation.--Notwithstanding any provision of a covered
Federal employment law, in any action, proceeding, or
investigation resulting from or related to an actual, alleged,
feared, or potential for exposure to coronavirus, or a change
in working conditions caused by a law, rule, declaration, or
order related to coronavirus, an employer shall not be subject
to any enforcement proceeding or liability under any provision
of a covered Federal employment law if the employer--
(A) was relying on and generally following
applicable government standards and guidance;
(B) knew of the obligation under the relevant
provision; and
(C) attempted to satisfy any such obligation by--
(i) exploring options to comply with such
obligations and with the applicable government
standards and guidance (such as through the use
of virtual training or remote communication
strategies);
(ii) implementing interim alternative
protections or procedures; or
(iii) following guidance issued by the
relevant agency with jurisdiction with respect
to any exemptions from such obligation.
(b) Public Accommodation Laws.--
(1) Definitions.--In this subsection--
(A) the term ``auxiliary aids and services'' has
the meaning given the term in section 4 of the
Americans with Disabilities Act of 1990 (42 U.S.C.
12103);
(B) the term ``covered public accommodation law''
means--
(i) title III of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12181 et
seq.); or
(ii) title II of the Civil Rights Act of
1964 (42 U.S.C. 2000a et seq.);
(C) the term ``place of public accommodation''
means--
(i) a place of public accommodation, as
defined in section 201 of the Civil Rights Act
of 1964 (42 U.S.C. 2000a); or
(ii) a public accommodation, as defined in
section 301 of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12181); and
(D) the term ``public health emergency period''
means a period designated a public health emergency
period by a Federal, State, or local government
authority.
(2) Actions and measures during a public health
emergency.--
(A) In general.--Notwithstanding any other
provision of law or regulation, during any public
health emergency period, no person who owns, leases (or
leases to), or operates a place of public accommodation
shall be liable under, or found in violation of, any
covered public accommodation law for any action or
measure taken regarding coronavirus and that place of
public accommodation, if such person--
(i) has determined that the significant
risk of substantial harm to public health or
the health of employees cannot be reduced or
eliminated by reasonably modifying policies,
practices, or procedures, or the provision of
an auxiliary aid or service; or
(ii) has offered such a reasonable
modification or auxiliary aid or service but
such offer has been rejected by the individual
protected by the covered law.
(B) Required waiver prohibited.--For purposes of
this subsection, no person who owns, leases (or leases
to), or operates a place of public accommodation shall
be required to waive any measure, requirement, or
recommendation that has been adopted in accordance with
a requirement or recommendation issued by the Federal
Government or any State or local government with regard
to coronavirus, in order to offer such a reasonable
modification or auxiliary aids and services.
SEC. 182. LIABILITY FOR CONDUCTING TESTING AT WORKPLACE.
Notwithstanding any other provision of Federal, State, or local
law, an employer, or other person who hires or contracts with other
individuals to provide services, conducting testing for coronavirus at
the workplace shall not be liable for any action or personal injury
directly resulting from such testing, except for those personal
injuries caused by the gross negligence or intentional misconduct of
the employer or other person.
SEC. 183. JOINT EMPLOYMENT AND INDEPENDENT CONTRACTING.
Notwithstanding any other provision of Federal or State law,
including any covered Federal employment law (as defined in section
181(a)), the Labor Management Relations Act, 1947 (29 U.S.C. 141 et
seq.), the Employment Retirement Income Security Act of 1974 (29 U.S.C.
1001 et seq.), and the Family and Medical Leave Act of 1993 (29 U.S.C.
2601 et seq.), it shall not constitute evidence of a joint employment
relationship or employment relationship for any employer to provide or
require, for an employee of another employer or for an independent
contractor, any of the following:
(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.
(4) Workplace testing for coronavirus.
(5) Temporary assistance due to coronavirus, including
financial assistance or other health and safety benefits.
SEC. 184. EXCLUSION OF CERTAIN NOTIFICATION REQUIREMENTS AS A RESULT OF
THE COVID-19 PUBLIC HEALTH EMERGENCY.
(a) Definitions.--Section 2(a) of the Worker Adjustment and
Retraining Notification Act (29 U.S.C. 2101(a)) is amended--
(1) in paragraph (2), by adding before the semicolon at the
end the following: ``and the shutdown, if occurring during the
covered period, is not a result of the COVID-19 national
emergency'';
(2) in paragraph (3)--
(A) in subparagraph (A), by striking ``and'' at the
end;
(B) in subparagraph (B), by adding ``and'' at the
end; and
(C) by adding at the end the following:
``(C) if occurring during the covered period, is
not a result of the COVID-19 national emergency;'';
(3) in paragraph (7), by striking ``and'';
(4) in paragraph (8), by striking the period at the end and
inserting a semicolon; and
(5) by adding at the end the following:
``(9) the term `covered period' means the period that--
``(A) begins on January 1, 2020; and
``(B) ends 90 days after the last date of the
COVID-19 national emergency; and
``(10) the term `COVID-19 national emergency' means the
national emergency declared by the President under the National
Emergencies Act (50 U.S.C. 1601 et seq.) with respect to the
Coronavirus Disease 2019 (COVID-19).''.
(b) Exclusion From Definition of Employment Loss.--Section 2(b) of
the Worker Adjustment and Retraining Notification Act (29 U.S.C.
2101(b)) is amended by adding at the end the following:
``(3) Notwithstanding subsection (a)(6), during the covered
period an employee may not be considered to have experienced an
employment loss if the termination, layoff exceeding 6 months,
or reduction in hours of work of more than 50 percent during
each month of any 6-month period involved is a result of the
COVID-19 national 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.
(a) In General.--Section 319F-3(i)(1) of the Public Health Service
Act (42 U.S.C. 247d-6d(i)(1)) is amended--
(1) in subparagraph (C), by striking ``; or'' and inserting
a semicolon;
(2) in subparagraph (D), by striking the period and
inserting ``; or''; and
(3) by adding at the end the following:
``(E) a drug (as such term is defined in section
201(g)(1) of the Federal Food, Drug, and Cosmetic Act),
biological product (including a vaccine) (as such term
is defined in section 351(i)), or device (as such term
is defined in section 201(h) of the Federal Food, Drug,
and Cosmetic Act) that--
``(i) is the subject of a notice of use of
enforcement discretion issued by the Secretary
if such drug, biological product, or device is
used--
``(I) when such notice is in
effect;
``(II) within the scope of such
notice; and
``(III) in compliance with other
applicable requirements of the Federal
Food, Drug, and Cosmetic Act that are
not the subject of such notice;
``(ii) in the case of a device, is exempt
from the requirement under section 510(k) of
the Federal Food, Drug, and Cosmetic Act; or
``(iii) in the case of a drug--
``(I) meets the requirements for
marketing under a final administrative
order under section 505G of the Federal
Food, Drug, and Cosmetic Act; or
``(II) is marketed in accordance
with section 505G(a)(3) of such Act.''.
(b) Clarifying Means of Distribution.--Section 319F-3(a)(5) of the
Public Health Service Act (42 U.S.C. 247d-6d(a)(5)) is amended by
inserting ``by, or in partnership with, Federal, State, or local public
health officials or the private sector'' after ``distribution'' the
first place it appears.
(c) No Change to Administrative Procedure Act Application to
Enforcement Discretion Exercise.--Section 319F-3 of the Public Health
Service Act (42 U.S.C. 247d-6d) is amended by adding at the end the
following:
``(j) Rule of Construction.--Nothing in this section shall be
construed--
``(1) to require use of procedures described in section 553
of title 5, United States Code, for a notice of use of
enforcement discretion for which such procedures are not
otherwise required; or
``(2) to affect whether such notice constitutes final
agency action within the meaning of section 704 of title 5,
United States Code.''.
TITLE III--GENERAL PROVISIONS
SEC. 301. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the
application of such a provision or amendment to any person or
circumstance is held to be unconstitutional, the remaining provisions
of and amendments made by this Act, as well as the application of such
provision or amendment to any person other than the parties to the
action holding the provision or amendment to be unconstitutional, or to
any circumstances other than those presented in such action, shall not
be affected thereby.
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