The 111th General Assembly adjourned on June 19, 2020 after passing an amended state budget drafted in response to steep funding deficits caused by the COVID-19 pandemic. Upon return from the spring legislative recess, House and Senate leadership agreed to address an abbreviated agenda of bills pertaining solely to state budgetary measures, COVID-19 relief efforts, and time sensitive matters. As the committee and floor agendas remained limited in scope, many legislative initiatives introduced in the beginning of the year were postponed or removed from consideration.

Governor Lee called a special session of the General Assembly in August to address limited liability protections from COVID-19 related legal claims and regulatory relief for telehealth services.

The legislature adjourned sine die ("without assigning a day for a further meeting or hearing") on August 12, 2020, after passing a suite of legislation which enacts broad based liability protection from COVID-19 related legal claims, expands telehealth coverage, and enhances criminal penalties for vandalism and camping on state property.

COVID-19 Liability Protection

The Tennessee COVID-19 Recovery Act (S.B. 8002/H.B. 8001) implements comprehensive liability protection against legal claims stemming from loss, damage, injury or death arising from COVID-19. The Act specifies that an individual or legal entity (a "person") will not be liable for loss, damage, injury, or death (collectively referred to hereinafter as an "injury") that arises from COVID-19 unless the claimant proves by clear and convincing evidence that the person proximately caused the injury by an act or omission constituting gross negligence or willful misconduct.

"Person" is defined to comprise a wide array of covered entities including individuals, healthcare providers, sole proprietorships, corporations, limited liability companies, partnerships, trusts, religious organizations, associations, nonprofit organizations, and any other legal entity whether formed as a for-profit or not-for-profit entity.

This legislation creates a heightened pleading standard which requires a claimant in any action alleging injury arising from COVID-19 to:

• File a verified complaint pleading specific facts with particularity from which a trier could reasonably conclude that the injury was caused by the defendant's gross negligence or willful misconduct; and
• File a certificate of good faith stating that the claimant or claimant's counsel has obtained a signed, written statement from a physician duly licensed to practice in the state or a contiguous bordering state and competent to express an opinion on exposure to or contraction of COVID-19, which confirms the physician's belief that the alleged injury was caused by an alleged act or omission of the defendant or defendants.

A claimant's failure to comply with the above-described pleading requirements will, upon motion, make the claim subject to dismissal with prejudice. The term "arising from COVID-19" is very broadly defined as "caused by or resulting from the actual, alleged, or possible exposure to or contraction of COVID-19, or caused by or resulting from services, treatment, or other actions in response to COVID-19." The Act provides that "arising from COVID-19" "include[es], but [is] not limited to:

1. Implementing policies and procedures to prevent or minimize the spread of COVID-19;
2. Testing;
3. Monitoring, collection, reporting, tracking, tracing, disclosing, or investigating COVID-19 exposure or other COVID-19 related information;
4. Using, designing, manufacturing, providing, donating, or servicing precautionary, diagnostic, collection, or other health equipment or supplies, such as personal protective equipment;
5. Closing or partially closing to prevent or minimize the spread of COVID-19;
6. Delaying or modifying the schedule or performance of any medical procedure; or
7. Providing services or products in response to government appeal or repurposing operations to address an urgent need for personal protective equipment, sanitation products, or other products necessary to protect the public."

In addition, Sections 2 and 3 of the Act provide specific civil liability protection for governmental entities and public colleges and universities for any injury arising from COVID-19, unless the claimant successfully proves and complies with the pleading standards described above (i.e., clear and convincing evidence that the loss, damage, injury, or death was proximately caused by an act or omission by the entity or its employees constituting gross negligence). They further prohibit claims against governmental employees "for any loss, damage, injury, or death arising from COVID-19 ... and proximately caused by an act or omission of the employee within the scope of the employee's employment for which the governmental entity is immune, unless the claimant proves by clear and convincing evidence that the loss, damage, injury, or death was caused by an act or omission that was willful, malicious, criminal, or performed for personal financial gain."

Section 7 of the Act resolved the previous disagreement between the legislative branches on retroactivity. Specifically, the Act will apply to all prospectively filed claims arising from COVID-19 and take effect upon forthcoming signature by Governor Lee. Following concerns raised about pending COVID-19 related lawsuits, legislators negotiated the addition of a "grandfather clause" that excludes claims occurring before August 3, 2020, in which:

• A complaint or civil warrant was filed;
• A notice of a claim was filed with the Tennessee Claims Commission; or
• Notice was satisfied under state laws pertaining to healthcare liability claims.

The legislation became effective August 18, 2020, and is scheduled to repeal on July 1, 2022, but it will continue to apply to any claims occurring before that date and pursuant to the noted exceptions.

An important matter to address is comparing the level of immunity protection provided under the new Tennessee law to the proposed federal legislation because, if the immunity protections presently set forth in federal legislation are enacted into law, the federal law will provide an "exclusive" federal cause of action for all COVID-19 related claims. Namely, the federal government has proposed pending legislation called the "Safe to Work Act" which is pending before the Senate Judiciary Committee. The Safe to Work act provides extremely broad liability immunity protection to individuals and entities engaged in businesses, services, "activities," or accommodations.

Other considerations to assess are the essential elements distinctions between the proposed federal legislation and the Tennessee statute, the statue of limitations for personal injury claims, gross negligence vs. willful negligence, and the procedural issues for removal from state court to Federal Court. When the Safe to Work Act is formally approved by Congress, answers to these considerations will be ripe for evaluation. The attorneys at Litchford, Pearce & Associates will update developments of any amendments to the Tennessee Act as well as the proposed federal Safe to Work Act. Please visit the firm's attorney webpage to contact us regarding ways to limit liability for your business.