In a second attempt to pass a COVID-19 liability shield, the Pennsylvania House of Representatives passed House Bill 605 on April 6, 2021. If signed into law, H.B. 605 would protect (among others) colleges, universities, and K-12 schools from civil liability for damages or personal injury relating to actual or alleged COVID-19 exposure. This shield would apply to acts or omissions throughout the duration of the ongoing disaster-emergency period, which began on March, 6, 2020 when Governor Wolf signed the first disaster-emergency proclamation.
Sweeping Protection for COVID-Exposure Cases
Under House Bill 605, educational institutions operating within the Commonwealth would be shielded from COVID-related exposure lawsuits “absent a showing, by clear and convincing evidence, of gross negligence, recklessness, willful misconduct, or intentional infliction of harm.” Moreover, an institution would be able to overcome such a showing by demonstrating its good faith effort to comply with “public health directives” in effect at the time of the alleged misconduct.
The Bill defines “public health directives” broadly to include orders or guidelines issued by the federal or state government regarding any of the following:
- Manufacturing, distribution, labeling, or use of personal protective equipment;
- Treatment or testing of individuals reasonably believed to have COVID-19; or
- Steps necessary or recommended to prevent, limit or slow the spread of COVID-19.
For institutions that distributed facial masks to their students or staff, take note of item number one above. That is, the Bill limits liability related to the distribution and labeling of personal protection equipment (PPE), with the same exception for gross negligence, recklessness, willful misconduct, or intentional infliction of harm, as measured by compliance with public health directives. PPE is defined broadly to include any “device, equipment, substance or material, recommended by the [CDC, FDA, EPA, DHS] or another federal authority or the Department of Health to prevent, limit or slow the spread of COVID-19.” So, in the context of educational institutions, if a community member claims they were injured or exposed by using a mask provided to them by the school (as a “distributor” of PPE), then liability protection should theoretically apply. This is but one example of how far the Bill may stretch.
Compulsory Arbitration Provision
As noted above, this Bill represents Pennsylvania legislators’ second attempt at passing COVID-19 liability protections. The first attempt, House Bill 1737, was passed by the Pennsylvania General Assembly on November 20, 2020, but was ultimately vetoed by Governor Wolf who described the legislation as “overreaching.” Similar in scope and purpose, the most notable difference in the current legislation is a compulsory arbitration requirement.
Specifically, this new Bill (House Bill 605) mandates that exposure-related claims must first be referred to a three-member arbitration panel, with limited exceptions. Plus, any party wishing to appeal an arbitration award would be required to “pay all or a portion of fees and costs.” Proponents of the Bill reason that arbitration provides an efficient mechanism for processing claims. Opponents are likely to argue that arbitration is designed for less complex issues and is ill-suited for wrongful death or catastrophic illness claims that COVID-19 lawsuits might involve. While it is unclear whether Governor Wolf will view this iteration any differently, the timeline of the current bill may allow time for compromise. The previous legislation, passed in late 2020, left little time for lawmakers to address the Governor’s concerns. With more time to react, there could be forward movement this time around.
- For institutions of higher education with a healthcare component, H.B. 605 provides additional coverage for healthcare practitioners and providers, hospitals, temporary testing and treatment facilities, emergency medical services agencies, nursing homes and clinical laboratories, and their employees.
- Adherence to local directives or institutional guidelines alone would not trigger liability protection under the Bill.