Regular Session 2019-2020 Senate Bill 1239 P.N. 1864

PRINTER'S NO. 1864

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

1239

Session of

2020

INTRODUCED BY BAKER, STEFANO, BROOKS, PHILLIPS-HILL, ARGALL,

MENSCH, GORDNER, PITTMAN, AUMENT, ARNOLD, BARTOLOTTA AND

J. WARD, JULY 27, 2020

REFERRED TO JUDICIARY, JULY 27, 2020

AN ACT

Amending Title 42 (Judiciary and Judicial Procedure) of the

Pennsylvania Consolidated Statutes, providing for COVID-19-

related liability.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Title 42 of the Pennsylvania Consolidated

Statutes is amended by adding a chapter to read:

CHAPTER 84

COVID-19-RELATED LIABILITY

Sec.

8401. Definitions.

8402. Personal protective equipment liability.

8403. Business services liability.

8404. Covered provider liability.

8405. Guidelines.

§ 8401. Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Business services." A lawful activity conducted by a trade,

business, nonprofit organization or school entity as defined in

section 1301-B of the act of March 10, 1949 (P.L.30, No.14),

known as the Public School Code of 1949, that is permitted by

the terms of the proclamation of disaster emergency to hold

itself out as open to members of the public.

"Covered provider." Any of the following:

(1) A health care practitioner as defined in section 103

and section 802.1 of the act of July 19, 1979 (P.L.130,

No.48), known as the Health Care Facilities Act, or a health

care practitioner or provider, including a registered nurse,

licensed by a state or a political division of the United

States, including pursuant to a waiver of a law or a

regulation issued by the United States, the Commonwealth or a

local governmental authority.

(2) A health care facility as defined in the Health Care

Facilities Act or a temporary site operated by a health care

facility during the proclamation of disaster emergency,

including a facility authorized to operate pursuant to a

waiver of a law or a regulation issued by the United States,

the Commonwealth or a local governmental authority.

(3) A health care provider as defined in the Health Care

Facilities Act or other legal entity whose primary purpose is

the provision of medical care for a health care provider.

(4) A facility as defined in section 1001 of the act of

June 13, 1967 (P.L.31, No.21), known as the Human Services

Code, or a parent organization of the facility.

(5) A business, university, facility or organization

that provides a venue for the provision of medical care.

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(6) A licensed, certified, registered or authorized

person providing emergency medical services as defined in 35

Pa.C.S. § 8103 (relating to definitions), including an EMS

vehicle operator.

(7) An EMS agency as defined in 35 Pa.C.S. § 8103,

including a parent organization of the EMS agency.

(8) A person engaged in nursing care as defined in 28

Pa. Code Ch. 201 (relating to applicability, definitions,

ownership and general operation of long-term care nursing

facilities), if the nursing care is in support of the

activities of daily living and other instrumental activities

of daily living as defined in 55 Pa. Code Chs. 2600 (relating

to personal care homes) and 2800 (relating to assisted living

residences), or services covered that nursing care providers

are obligated to deliver or arrange under their requirements

of licensure.

(9) Any clinical laboratory certified under the Federal

Clinical Laboratory amendments in section 353 of the Public

Health Service Act (58 Stat. 682, 42 U.S.C. § 201 et seq.),

or licensed under the act of September 26, 1951 (P.L.1539,

No.389), known as The Clinical Laboratory Act.

(10) An individual employed or contracted by an

individual or entity under paragraphs (1), (2), (3), (4),

(5), (6), (7), (8) and (9), who is involved in providing

medical care.

"COVID-19." The coronavirus disease 2019, an infectious

disease caused by severe acute respiratory syndrome coronavirus

2 that was first identified during December 2019 in Wuhan,

China.

"Direct cost." The direct labor and direct material costs of

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producing personal protective equipment, excluding any

manufacturing overhead costs.

"Guidelines." Guidelines issued by the Federal or State

government regarding:

(1) The manufacturing or use of personal protective

equipment during the proclamation of disaster emergency.

(2) Treatment or testing of individuals with or

reasonably believed to have COVID-19.

(3) Steps necessary or recommended to prevent, limit or

slow the spread of COVID-19.

"Personal protective equipment." A device, equipment,

substance or material recommended by the Centers for Disease

Control and Prevention, Food and Drug Administration,

Environmental Protection Agency, Department of Homeland

Security, another Federal authority or the Department of Health

to limit the spread of COVID-19, such as respirators, masks,

surgical apparel, gowns, gloves and other apparel intended for a

medical purpose. The term includes sanitizers and disinfectants.

"Premises." A building, structure, dwelling or real property

which may be entered or used by persons for business services,

public use, lodging or the storage of goods, including any

vehicle, aircraft or watercraft used for the lodging of persons

or carrying on of business services.

"Proclamation of disaster emergency." Any proclamation of

disaster emergency issued by the Governor regarding COVID-19 and

any renewal of the state of disaster emergency, such as the

proclamation of disaster emergency issued by the Governor on

March 6, 2020, published at 50 Pa.B. 1644 (March 21, 2020), and

renewed on June 3, 2020, and any renewal of the state of

disaster emergency.

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§ 8402. Personal protective equipment liability.

(a) Manufacturer, distributor, labeler and donor.--The

following apply:

(1) A person that manufactures, distributes, labels or

donates personal protective equipment shall not be civilly

liable for damages, injury or death resulting from or related

to actual or alleged exposure to COVID-19, in connection with

the use of personal protective equipment that, during the

proclamation of disaster emergency, is donated or sold at

direct cost, to a charitable organization, governmental unit

or covered provider, absent a showing by clear and convincing

evidence of recklessness, willful misconduct or intentional

infliction of harm.

(2) An act or omission in compliance with, or in a good

faith belief that the act or omission was in compliance with,

the guidelines, shall not be considered willful misconduct or

an act or omission intentionally designed to harm or that is

reckless.

(b) Other manufacturers, distributors and labelers.--Except

as provided under subsection (a), the following apply:

(1) A person that manufactures, distributes or labels

personal protective equipment shall not be civilly liable for

damages, injury or death resulting from or related to actual

or alleged exposure to COVID-19 in connection with the use of

personal protective equipment absent a showing, by clear and

convincing evidence, of gross negligence, recklessness,

willful misconduct or intentional infliction of harm if the

person commenced manufacturing, distributing or labeling:

(i) only in connection with a proclamation of

disaster emergency; or

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(ii) to the same standards that it manufactured,

distributed or labeled the equipment before a

proclamation of disaster emergency, unless the equipment

is clearly labeled to indicate otherwise.

(2) An act or omission in compliance with the guidelines

shall not be considered willful misconduct, an act or

omission intentionally designed to harm or to be grossly

negligent or reckless.

(1) A person that used or employed personal protective

equipment during the proclamation of disaster emergency in

compliance with guidelines related to the personal protective

equipment shall not be civilly liable for damages, injury or

death caused by or related to use of the personal protective

equipment absent a showing, by clear and convincing evidence,

of gross negligence, recklessness, willful misconduct or

intentional infliction of harm.

(2) An act or omission in compliance with, or in a good

faith belief that the act or omission was in compliance with,

the guidelines, shall not be considered willful misconduct,

an act or omission intentionally designed to harm or to be

grossly negligent or reckless.

§ 8403. Business services liability.

(a) Limited liability.--Notwithstanding any other provision

of law to the contrary and except as provided in subsection (b),

a person providing business services shall not be civilly liable

for damages or personal injury resulting from an actual or

alleged exposure to COVID-19 while on the premises, absent a

showing, by clear and convincing evidence, of gross negligence,

recklessness, willful misconduct or intentional infliction of

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harm if in the performance of business services at the time of

alleged or actual exposure, the person attempted in good faith

to follow guidelines related to COVID-19 exposure.

(b) Compliance with guidelines.--An act or omission in

compliance with, or in a good faith belief that the act or

omission is in compliance with, the guidelines shall not be

considered willful misconduct, an act or omission designed to

harm or to be grossly negligent or reckless.

§ 8404. Covered provider liability.

(a) Limited immunity.--The following apply:

(1) A covered provider, notwithstanding if the covered

provider is compensated for medical care, shall be immune

from civil liability as a result of any acts or omissions by

the covered provider during the proclamation of disaster

emergency, absent a showing, by clear and convincing

evidence, of gross negligence, recklessness, willful

misconduct or intentional infliction of harm, as follows:

(i) the provision of treatment or testing for COVID-

19 to patients that have been exposed to or whom a

covered provider reasonably believes may have been

exposed to COVID-19; or

(ii) an action taken by a covered provider or the

failure of a covered provider to take an action which

action or failure to take an action was proximately

caused by any of the following:

(A) equipment, supplies or personnel shortages

at a covered provider caused by the demand for

testing for or treatment of COVID-19 and which was

beyond the reasonable control of the covered

provider;

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(B) a number of patients in excess of the

capacity of a department or of a unit of a covered

provider as a direct result of the need to test for

or treat COVID-19; or

testing for and treatment of COVID-19.

(2) An act or omission by a covered provider in

compliance with the guidelines shall not be considered

willful misconduct, an act or omission intentionally designed

to harm or to be grossly negligent or reckless.

(b) Vicarious liability.--No vicarious liability shall

attach to the employer of any person who is otherwise immune

under this section.

§ 8405. Guidelines.

In determining civil liability under this chapter, a court

shall:

(1) For a manufacturer, distributor or labeler, consider

guidelines that were in effect at the time, either of the

manufacture, distribution, labeling or sale of the personal

protective equipment.

(2) For a person providing business services, consider

guidelines that were in effect at the time of an alleged

exposure.

(3) For a covered provider, consider guidelines that

were in effect at the time an alleged act or failure to act

occurred.

Section 2. The addition of 42 Pa.C.S. Ch. 84 shall not:

(1) Be construed to create a new cause of action or

expand any civil or criminal liability otherwise imposed,

limit any defense or affect the applicability of any law that

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affords greater protections to defendants that are provided

under 42 Pa.C.S. Ch. 84.

(2) Prevent an individual from filing a claim for

Workers' Compensation or receiving benefits under the act of

June 2, 1915 (P.L.736, No.338), known as the Workers'

Compensation Act, if otherwise available.

Section 3. This act shall take effect immediately.

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