Trial News

In late March, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act to help people and businesses suffering from economic hardships as a result of COVID-19. The solution to economic challenges for some industries always is to propose tort “reform.” But in the span of just over a week, AAJ Public Affairs fought back against the worst of these measures, resulting in only two narrow immunity provisions related to COVID-19 in the final legislation.

Stopping the worst of the worst. The Senate Committee on Homeland Security and Governmental Affairs was the source of one of the worst immunity provisions we’ve ever encountered. That provision would have given four sectors—communications, energy, transportation, and water and wastewater management—broad immunity for negligent acts while following orders issued by the president or various federal departments and agencies. The provision was not narrowly crafted to specifically address the COVID-19 pandemic. For example, if the president ordered wastewater management companies to remain operational and the companies complied but also caused massive groundwater contamination, the provision could have resulted in unprecedented immunity for the pollution. AAJ opposed the provision, and it was not included in the CARES Act.

The CARES Act provides a range of economic relief to businesses and individuals, including funding for a small business loan program that may be beneficial to many of AAJ’s law firm members. As Congress considered what size and kind of businesses to protect, AAJ made it clear that protections should not be given to the cruise industry, which foreign flags its vessels to avoid paying federal income tax and complying with U.S. wage and employment laws.

And importantly, the new law includes a rule of construction that the secretary of the Department of the Treasury may provide only the relief specified in the act. This precludes the administration from granting expanded immunity or affecting legal liability under the terms of loans.

The CARES Act contains two narrow immunity provisions—one related to health care volunteers and one related to respirator manufacturers and sellers.

Health care volunteer immunity. The CARES Act includes an immunity provision for volunteer health care professionals responding to the COVID-19 pandemic. The immunity provision applies only when health care professionals act within the scope of their license or registration to provide volunteer health care services and do so in good faith for patients whom they believe needed care. The new law also contains exceptions from immunity for gross negligence, recklessness, and willful and criminal misconduct in the provision of health care services, including while under the influence of alcohol or drugs.   

Immunity for respirators during a pandemic. The CARES Act also added NIOSH-approved respirators to the existing list of “countermeasures” that are given immunity in emergency circumstances under the 2005 Public Readiness and Emergency Preparedness (PREP) Act. Under this law, the Department of Health and Human Services (HHS) may declare a temporary limitation of civil immunity during an emergency pandemic event. Past declarations have been made for pandemic outbreaks such as Ebola, Anthrax, and the Zika virus—and  on March 17, HHS declared COVID-19 a pandemic. Immunity applies to the development, manufacture, testing, distribution, administration, and use of countermeasures necessary for treatment.

The PREP Act contains the Countermeasures Injury Compensation Program (CICP), which provides benefits to certain individuals or estates of individuals who sustain serious physical injuries or who die as the direct result of a countermeasure. Benefits include compensation for unreimbursed medical expenses, lost employment income, and survivor death benefits. Please visit the Health Resources & Services Administration website (https://www.hrsa.gov/cicp/) for more information about the CICP.

What’s next. AAJ expects Congress to consider an additional bailout measure in the months ahead, and we are working to ensure that any provisions limiting liability are extremely narrow and apply only to the exigent circumstances of COVID-19.

Linda Lipsen is AAJ’s chief executive officer. To contact AAJ Public Affairs, email advocacy@justice.org.

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