The Bill’s protections extend from March 6, 2020, and will apply for the duration of the proclamation period.

Update: On November 30, 2020, Governor Wolf vetoed H.B. 1737, saying the bill provided businesses “overreaching” immunity from civil liability that “invite[d] the potential for carelessness and a disregard for public safety.”

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On November 20, 2020, the Pennsylvania General Assembly enacted House Bill 1737, which creates a temporary safe harbor for schools, child care facilities, health care providers and other business and government service providers facing COVID-19-related lawsuits.

H.B. 1737 protects schools, child care facilities, healthcare providers, businesses and government services providers from civil liability for damages relating to any alleged or actual COVID-19 exposure “absent a showing, by clear and convincing evidence, of gross negligence, recklessness, willful misconduct, or intentional infliction of harm.”

The Bill also limits liability for manufacturers, distributors, labelers, donors and users of personal protective equipment (PPE) and creates additional protections for persons and organizations attempting to comply in good faith with existing state and federal public health directives in response to the COVID-19 pandemic.

The Bill’s protections extend from March 6, 2020—when Governor Tom Wolf first signed a proclamation of disaster emergency in response to the COVID-19 pandemic, and which he subsequently renewed on June 3, 2020, and September 1, 2020—and will apply for the duration of the proclamation period. The Bill’s protections will only apply to acts or omissions that occurred during the proclamation period, or to PPE that was manufactured or distributed during the proclamation period.

Schools and Child Care Facilities

H.B. 1737 limits COVID-19 liability for school entities and child care facilities “absent a showing, by clear and convincing evidence, of gross negligence, recklessness, willful misconduct, or intentional infliction of harm”. This includes any school district, school, institute of higher education operating within the Commonwealth, or any individual employed by or contracted by a school entity or child care facility.

Manufacturers, Distributors, Labelers and Donors of PPE

H.B. 1737 also limits liability for the manufacture, distribution, labeling, donation and use of PPE.

The Bill broadly defines PPE to include “any 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 other federal authority or the Department of Health to prevent, limit, or slow the spread of COVID-19.”  This includes:

• Respirators;
• Masks;
• Surgical apparel;
• Gowns, gloves and other apparel intended for a medical purpose; and
• Sanitizers and disinfectants.

The Bill limits liability for anyone who manufactures, distributes, labels or donates PPE that is donated or sold at direct cost to a charitable organization, the Commonwealth, locality or covered provider, absent a showing by clear and convincing evidence of recklessness, willful misconduct or intentional infliction of harm. 

The Bill also limits liability for other PPE manufacturers, distributors and labelers if they commenced such activity only in connection with Governor Wolf’s proclamation of disaster emergency, or conducted such activity in accordance with pre-pandemic standards, unless clearly labeled to indicate otherwise.

Finally, the Bill limits liability for anyone who uses or employs PPE in compliance with existing state and federal public health directives related to PPE. 

Business or Government Services Providers

H.B. 1737 limits COVID-19 liability for persons providing business or government services “absent a showing, by clear and convincing evidence, of gross negligence, recklessness, willful misconduct, or intentional infliction of harm.”

This encompasses any lawful activity conducted by a trade, business, nonprofit organization or local governmental unit that is permitted by the terms of Governor Wolf’s proclamation of disaster emergency to hold itself out as open to members of the public.

Covered Providers

Finally, H.B. 1737 limits liability for any “covered provider” that provides treatment or testing for COVID-19 to patients who may have been exposed to the disease.

This includes healthcare practitioners and providers, hospitals, temporary testing and treatment facilities, emergency medical services agencies, nursing homes and clinical laboratories, and their employees.

Additionally, the Bill limits liability for any act or omission proximately caused by:

• Shortages of equipment, supplies or personnel as a direct result of the demand for testing or treatment and beyond the provider’s control;
• Patients in excess of the capacity of a department or unit as a direct result of the need to test for or treat COVID-19; or
• The need to comply with state and federal public health directives.

The Bill’s protections do not prevent an individual from filing a claim or receiving benefits under the Workers’ Compensation Act if otherwise available.

The Bill was passed by the Senate on November 19 by a vote of 29-20, and following the House’s concurrence in amendments sponsored by Senator Lisa Baker, signed in both the House and Senate on November 20. The Bill has been presented to Governor Wolf for his approval.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to, and address this fast-moving situation. Prior Alerts on this topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Sharon L. Caffrey, Kelly A. Bonner, any of the attorneys in our Philadelphia office, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.