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News & Press: Policy Update

Policy Update: Tennessee Safe Harbor and Recovery Act and More!

Friday, June 5, 2020  
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Tennessee Safe Harbor and Recovery Act


     

TICUA is continuing to work with a coalition of over 30 diverse employer associations to ensure protection from frivolous lawsuits related to the Coronavirus.  The Tennessee Safe Harbor and Recovery Act (SB2381/HB2623) provides protection for those entities which are attempting, to the best of their ability, to abide by governmental endorsed guidelines related to COVID-19 as they reopen their operations. 

Here are the aspects of the proposed legislation:

The Tennessee Safe Harbor and Recovery Act will provide broad civil liability protection from “health emergency claims” for a wide array of covered entities in Tennessee, including:

  • For-profit and nonprofit business entities; 
  • Health care providers; 
  • Educational entities (including TICUA members); 
  • Religious organizations; and 
  • Local governments
Covered Entity Protection

Under this act, a covered entity will not be liable for any damages, injury, or death that results from a health emergency claim if the covered entity (1) did not act with gross negligence or willful misconduct, and (2) substantially complied with applicable public health guidance.

A “health emergency claim” includes any cause of action that is related to the following circumstances: 

  1.  The actual, alleged, or possible exposure to, or contraction of, Coronavirus from a covered entity or arising from a covered entity's operations, products, or services; or 
  2. The covered entity’s efforts to prevent or delay the spread of Coronavirus. 

This legislation also offers specific protection for health care providers from claims related to the provision of health care services or treatment in response to the Coronavirus.

As covered entities have been faced with interpreting a complex framework of local, state, and federal guidelines, the Tennessee Recovery and Safe Harbor Act adopts a comprehensive definition of “public health guidance,” which includes all forms of governmental guidance and direction released throughout the progression of the pandemic.

Legal Standards

While this legislation intends to provide protection from the financial toll and distraction of legal defense, it does not seek to excuse bad actors or create blanket immunity from pandemic-related lawsuits.

  • Protection from health emergency claims does not apply if a claimant proves by clear and convincing evidence that the covered entity caused damages, injury, or death by acting with gross negligence or willful misconduct.

In order to overcome the act’s safe harbor from health emergency claims, a claimant must demonstrate that the harm alleged was:

  1. Caused by the covered entity’s gross negligence or willful misconduct; and
  2. Did not substantially comply with applicable public health guidance.

Considering the severe economic damage caused by the pandemic, covered entities throughout the state have expressed that the expense of defending frivolous lawsuits would drive them into financial ruin. 

  • In an effort to prevent costly defense of unsubstantiated litigation, claimants will be required to meet a heightened standard of pleading specific facts with particularity in order for a health emergency claim to advance.

The bill is slated to be heard next week in the House Civil Justice Subcommittee on Monday morning and the Senate Judiciary Committee on Tuesday afternoon.  Calls to your Senator and Representative  in support of the measure are strongly encouraged!

 

Senate Education Ends Consideration of Governor’s Literacy Bill


      Governor Bill Lee’s signature education bill was sent to the “General Subcommittee” during this week’s Senate Education Committee. The move essentially ends any chance of the bill to be passed this session.  The House Government Operations Committee moved the bill to the House Finance Committee, but it is unlikely to move further due to the action by the Senate Education Committee.

Even though the bill remained somewhat controversial, the price tag for the legislation seemed out of reach this year due to the economic downturn as result of the Coronavirus.  The Governor’s commitment to improving reading levels among all Tennessee’s students remains strong.  It is likely that legislation will be filed early in the 112th General Assembly to address the issue. 
 

Strong Act Modifications Stalled 


      The bill (SB2177/HB2246) to expand and modify the STRONG Act was left without action in the Senate Education Committee.  The Committee adjourned to the call of the Chair without taking up the legislation.  On the House side, the bill is awaiting consideration in the House Finance Committee, but it probably be taken off notice considering the Senate’s lack of action on the bill.  As with most bills this session, it appears that the fiscal note was too large to be considered during these difficult financial times.