H0605B1028A00598 MAB:JMT 03/24/21 #90 A00598
AMENDMENTS TO HOUSE BILL NO. 605
Sponsor: REPRESENTATIVE ECKER
Printer's No. 1028
Amend Bill, page 1, line 3, by striking out the period after
"actions" and inserting
; and, in particular rights and immunities, providing for COVID-
19-related liability.
Amend Bill, page 2, line 26, by inserting after
"manufacturing"
, distribution, labeling
Amend Bill, page 3, by inserting between lines 1 and 2
Section 2. Chapter 83 of Title 42 is amended by adding a
subchapter to read:
SUBCHAPTER F.2
COVID-19-RELATED LIABILITY
Sec.
8368.11. Definitions.
8368.12. School and child care liability.
8368.13. Personal protective equipment liability.
8368.14. Business or government services liability.
8368.15. Covered provider liability.
8368.16. Application of subchapter.
8368.17. Construction of subchapter.
§ 8368.11. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Business or government services." A lawful activity
conducted by a trade, business, association, nonprofit entity or
organization or local governmental unit which is permitted by
the terms of a proclamation of disaster emergency to hold itself
out as open to members of the public or to its members.
"Child-care facility." Any of the following:
(1) A child care center as defined in section 1001 of
the act of June 13, 1967 (P.L.31, No.21), known as the Human
Services Code.
(2) A children's institution as defined in section 901
of the Human Services Code.
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(3) A family child care home as defined in section 1001
of the Human Services Code.
(4) An individual employed or contracted by a person
under paragraph (1), (2) or (3).
"Covered provider." Any of the following:
(1) A health care practitioner as defined in section 103
of the act of July 19, 1979 (P.L.130, No.48), known as the
Health Care Facilities Act.
(2) A health care provider, including a registered
nurse, licensed by a state or a political division of the
United States. This paragraph includes licensure pursuant to
a waiver.
(3) A health care facility as defined in section 802.1
of the Health Care Facilities Act, including a hospital
caring exclusively for the mentally ill. This paragraph
includes a facility authorized to operate pursuant to a
waiver.
(4) A temporary site operated by a health care facility
under paragraph (3) during the proclamation of disaster
emergency.
(5) A health care provider as defined in section 103 of
the Health Care Facilities Act or another legal entity whose
primary purpose is the provision of medical care for a health
care provider.
(6) A facility as defined in section 1001 of the Human
Services Code or a parent organization of the facility.
(7) A business, institution of higher education,
facility or organization, which provides a venue for the
provision of medical care.
(8) A licensed, certified, registered or authorized
person providing emergency medical services as defined in 35
Pa.C.S. § 8103 (relating to definitions). The term includes
an emergency medical services vehicle operator.
(9) An emergency medical services agency as defined in
35 Pa.C.S. § 8103. This paragraph includes a parent
organization of the agency.
(10) A person engaged in nursing care as defined in 28
Pa. Code § 201.3 (relating to definitions), if the nursing
care:
(i) is in support of the activities of daily living
and other instrumental activities of daily living as
defined in 55 Pa. Code § 2600.4 (relating to definitions)
or 2800.4 (relating to definitions) and other
instrumental activities; or
(ii) consists of covered services which nursing care
providers are obligated to deliver or arrange under their
requirements of licensure.
(11) A clinical laboratory:
(i) certified under section 353 of the Public Health
Service Act (58 Stat. 682, 42 U.S.C. § 263a); or
(ii) licensed under the act of September 26, 1951
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(P.L.1539, No.389), known as The Clinical Laboratory Act.
(12) An individual employed or contracted by a person
under paragraph (1), (2), (3), (4), (5), (6), (7), (8), (9),
(10) or (11), who is involved in providing medical care.
"COVID-19." The novel coronavirus as identified in the
proclamation of disaster emergency issued by the Governor on
March 6, 2020, published at 50 Pa.B. 1644 (March 21, 2020).
"Institution of higher education." The term includes any of
the following:
(1) A community college operating under Article XIX-A of
the act of March 10, 1949 (P.L.30, No.14), known as the
Public School Code of 1949.
(2) The State System of Higher Education. This paragraph
includes a university within the system.
(3) The Pennsylvania State University, the University of
Pittsburgh, Temple University, Lincoln University or an
institution designated as State-related by the Commonwealth.
(4) The Thaddeus Stevens College of Technology and The
Pennsylvania College of Technology.
(5) A rural regional college operating under Article
XIX-G of the Public School Code of 1949.
(6) An institution of higher education located in and
incorporated or chartered by the Commonwealth and entitled to
confer degrees under 24 Pa.C.S. § 6505 (relating to power to
confer degrees) and as provided for by the standards and
qualifications prescribed by the State Board of Education
under 24 Pa.C.S. Ch. 65 (relating to private colleges,
universities and seminaries).
(7) A private school licensed under the act of December
15, 1986 (P.L.1585, No.174), known as the Private Licensed
Schools Act.
(8) A foreign corporation approved to operate an
educational enterprise under 22 Pa. Code Ch. 36 (relating to
foreign corporation standards).
(9) A community education council operating under
Article XIX-D of the Public School Code of 1949.
"Local governmental unit." A municipality or local
authority.
"Person." A natural person, corporation, firm, association,
organization, partnership, limited liability company, business,
trust, business trust, estate or foundation.
"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
or another Federal authority or the Department of Health to
prevent, limit or slow 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.
"Proclamation of disaster emergency." A proclamation of
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disaster emergency issued by the Governor relating to COVID-19
and any renewal of the state of disaster emergency, including
the proclamation of disaster emergency issued by the Governor on
March 6, 2020, published at 50 Pa.B. 1644 (March 21, 2020), and
any renewal of the state of disaster emergency.
"Public health directives." Orders or guidelines issued by
the Federal or State government regarding any of the following:
(1) The manufacturing, distribution, labeling 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.
"School entity." Any school district, charter school, cyber
charter school, regional charter school, chartered school for
the deaf and blind, private school, nonpublic school,
prekindergarten, intermediate unit, area career and technical
school, approved private school or institution of higher
education operating within this Commonwealth. The term includes
an individual employed by or contracted by a school entity.
§ 8368.12. School and child care liability.
(a) Limited liability.--Notwithstanding any other provision
of law, a school entity or child-care facility shall not be
civilly liable for damages or personal injury relating to an
actual or alleged exposure to COVID-19, absent a showing, by
clear and convincing evidence, of gross negligence,
recklessness, willful misconduct or intentional infliction of
harm.
(b) Compliance with public health directives.--An act or
omission in compliance with, or in a good faith belief that the
act or omission is in compliance with, public health directives
shall not be considered gross negligence, recklessness, willful
misconduct or intentional infliction of harm.
§ 8368.13. Personal protective equipment liability.
(a) Manufacturers, distributors and labelers.--All of the
following apply:
(1) Notwithstanding any other provision of law, a person
that manufactures, distributes or labels personal protective
equipment shall not be civilly liable for damages or personal
injury 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
(ii) in accord with the same standards to which it
manufactured, distributed or labeled the equipment before
a proclamation of disaster emergency, unless the
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equipment is clearly labeled to indicate otherwise.
(2) An act or omission in compliance with, or in a good
faith belief that the act or omission was in compliance with,
public health directives shall not be considered gross
negligence, recklessness, willful misconduct or intentional
infliction of harm.
(b) Users.--
(1) Notwithstanding any other provision of law, a person
that uses or employs personal protective equipment during the
proclamation of disaster emergency in compliance with public
health directives related to the personal protective
equipment shall not be civilly liable for damages or personal
injury 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,
public health directives shall not be considered gross
negligence, recklessness, willful misconduct or intentional
infliction of harm.
(c) Federal protections.--This section applies only to a
person who does not enjoy liability protections under the Public
Readiness and Emergency Preparedness (PREP) Act (42 U.S.C. §
247d-6d et seq.).
§ 8368.14. Business or government services liability.
(a) Limited liability.--Notwithstanding any other provision
of law, a person providing business or government services shall
not be civilly liable for damages or personal injury, related to
an actual or alleged exposure to COVID-19, absent a showing, by
clear and convincing evidence, of gross negligence,
recklessness, willful misconduct or intentional infliction of
harm.
(b) Compliance with public health directives.--An act or
omission in compliance with, or in a good faith belief that the
act or omission is in compliance with, public health directives
shall not be considered gross negligence, recklessness, willful
misconduct or intentional infliction of harm.
§ 8368.15. Covered provider liability.
(a) Limited liability.--Notwithstanding any other provision
of law, a covered provider shall not be civilly liable for
damages or personal injury, related to any of the following,
absent a showing, by clear and convincing evidence, of gross
negligence, recklessness, willful misconduct or intentional
infliction of harm:
(1) Provision of treatment or testing for COVID-19 to
patients who have been exposed to or whom a covered provider
reasonably believes may have been exposed to COVID-19.
(2) An act or omission proximately caused by:
(i) shortage of equipment, supplies or personnel
which:
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(A) was a direct result of the demand for
testing for or treatment of COVID-19; and
(B) was beyond the reasonable control of the
covered provider;
(ii) 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
(iii) compliance with public health directives
regarding the testing for and treatment of COVID-19.
(b) Compliance with public health directives.--An act or
omission by a covered provider in compliance with, or in a good
faith belief that the act or omission was in compliance with,
public health directives shall not be considered gross
negligence, recklessness, willful misconduct or intentional
infliction of harm.
§ 8368.16. Application of subchapter.
(a) Vicarious liability.--Vicarious liability shall not
attach to the employer of an individual who is otherwise immune
under this subchapter or an executive order.
(b) Public health directives.--In determining civil
liability under this subchapter, a court shall:
(1) For a manufacturer, distributor, labeler or user,
consider public health directives which were in effect at the
time of the manufacture, distribution, labeling, sale or use
of the personal protective equipment.
(2) For a person providing business or government
services, user of personal protective equipment, school
entity or child-care facility, consider public health
directives which were in effect at the time an alleged act or
omission occurred.
(3) For a covered provider, consider public health
directives which were in effect at the time an alleged act or
omission occurred.
(c) Proclamation of disaster emergency.--This subchapter
shall apply to acts or omissions during a proclamation of
disaster emergency.
§ 8368.17. Construction of subchapter.
This subchapter shall not be construed to:
(1) create a new cause of action;
(2) expand a civil or criminal liability otherwise
imposed;
(3) limit a defense;
(4) affect the applicability of a statute which affords
greater protections to defendants than are provided under
this subchapter; or
(5) prevent an individual from filing a claim or
receiving benefits under the act of June 2, 1915 (P.L.736,
No.338), known as the Workers' Compensation Act, if otherwise
available.
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Amend Bill, page 3, line 2, by striking out "2" and inserting
3
Amend Bill, page 3, by inserting between lines 9 and 10
Section 4. The provisions of this act are severable. If any
provision of this act or its application to any person or
circumstances is held invalid, the invalidity shall not affect
other provisions or applications of this act which can be given
effect without the invalid provisions or application.
Amend Bill, page 3, line 10, by striking out "3" and
inserting
5
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