II 

116TH CONGRESS 

2D SESSION S. 4317 

To lessen the burdens on interstate commerce by discouraging insubstantial 

lawsuits relating to COVID–19 while preserving the ability of individuals 

and businesses that have suffered real injury to obtain complete relief. 

IN THE SENATE OF THE UNITED STATES 

JULY 27, 2020 

Mr. CORNYN (for himself and Mr. MCCONNELL) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

A BILL 

To lessen the burdens on interstate commerce by discouraging insubstantial lawsuits relating to COVID–19 while 

preserving the ability of individuals and businesses that 

have suffered real injury to obtain complete relief. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Safeguarding America’s Frontline Employees To Offer 

6 Work Opportunities Required to Kickstart the Economy 

7 Act’’ or the ‘‘SAFE TO WORK Act’’. 


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1 (b) TABLE OF CONTENTS.—The table of contents for 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings and purposes. 

Sec. 3. Definitions. 

TITLE I—LIABILITY RELIEF 

Subtitle A—Liability Limitations for Individuals and Entities Engaged in 

Businesses, Services, Activities, or Accommodations 

Sec. 121. Application of subtitle. 

Sec. 122. Liability; safe harbor. 

Subtitle B—Liability Limitations for Health Care Providers 

Sec. 141. Application of subtitle. 

Sec. 142. Liability for health care professionals and health care facilities during 

coronavirus public health emergency. 

Subtitle C—Substantive and Procedural Provisions for Coronavirus-related 

Actions Generally 

Sec. 161. Jurisdiction. 

Sec. 162. Limitations on suits. 

Sec. 163. Procedures for suit in district courts of the United States. 

Sec. 164. Demand letters; cause of action. 

Subtitle D—Relation to Labor and Employment Laws 

Sec. 181. Limitation on violations under specific laws. 

Sec. 182. Liability for conducting testing at workplace. 

Sec. 183. Joint employment and independent contracting. 

Sec. 184. Exclusion of certain notification requirements as a result of the 

COVID–19 public health emergency. 

TITLE II—PRODUCTS 

Sec. 201. Applicability of the targeted liability protections for pandemic and 

epidemic products and security countermeasures with respect 

to COVID–19. 

TITLE III—GENERAL PROVISIONS 

Sec. 301. Severability. 

3 SEC. 2. FINDINGS AND PURPOSES. 

4 (a) FINDINGS.—Congress finds the following: 

5 (1) The SARS–CoV–2 virus that originated in 

6 China and causes the disease COVID–19 has caused 


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1 untold misery and devastation throughout the world, 

2 including in the United States. 

3 (2) For months, frontline health care workers 

4 and health care facilities have fought the virus with 

5 courage and resolve. They did so at first with very 

6 little information about how to treat the virus and 

7 developed strategies to save lives of the people of the 

8 United States in real time. They risked their per9 sonal health and wellbeing to protect and treat their 

10 patients. 

11 (3) Businesses in the United States kicked into 

12 action to produce and procure personal protective 

13 equipment, such as masks, gloves, face shields, and 

14 hand sanitizer, and other necessary medical supplies, 

15 such as ventilators, at unprecedented rates. 

16 (4) To halt the spread of the disease, State and 

17 local governments took drastic measures. They shut 

18 down small and large businesses, schools, colleges 

19 and universities, religious, philanthropic and other 

20 nonprofit institutions, and local government agen21 cies. They ordered people to remain in their homes. 

22 (5) This standstill was needed to slow the 

23 spread of the virus. But it devastated the economy 

24 of the United States. The sum of hundreds of local25 level and State-level decisions to close nearly every 


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1 space in which people might gather brought inter2 state commerce nearly to a halt. 

3 (6) This halt led to the loss of millions of jobs. 

4 These lost jobs were not a natural consequence of 

5 the economic environment, but rather the result of 

6 a drastic, though temporary, response to the unprec7 edented nature of this global pandemic. 

8 (7) Congress passed a series of statutes to ad9 dress the health care and economic crises—the 

10 Coronavirus Preparedness and Response Supple11 mental Appropriations Act, 2020 (Public Law 116– 

12 123; 134 Stat. 146), the Families First Coronavirus 

13 Response Act (Public Law 116–127; 134 Stat. 178), 

14 the Coronavirus Aid, Relief, and Economic Security 

15 Act or the CARES Act (Public Law 116–136), and 

16 the Paycheck Protection Program and Health Care 

17 Enhancement Act (Public Law 116–139; 134 Stat. 

18 620). In these laws Congress exercised its power 

19 under the Commerce and Spending Clauses of the 

20 Constitution of the United States to direct trillions 

21 of taxpayer dollars toward efforts to aid workers, 

22 businesses, State and local governments, health care 

23 workers, and patients. 

24 (8) This legislation provided short-term insula25 tion from the worst of the economic storm, but these 


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1 laws alone cannot protect the United States from 

2 further devastation. Only reopening the economy so 

3 that workers can get back to work and students can 

4 get back to school can accomplish that goal. 

5 (9) The Constitution of the United States spe6 cifically enumerates the legislative powers of Con7 gress. One of those powers is the regulation of inter8 state commerce. The Government is not a substitute 

9 for the economy, but it has the authority and the 

10 duty to act when interstate commerce is threatened 

11 and damaged. As applied to the present crisis, Con12 gress can deploy its power over interstate commerce 

13 to promote a prudent reopening of businesses and 

14 other organizations that serve as the foundation and 

15 backbone of the national economy and of commerce 

16 among the States. These include small and large 

17 businesses, schools (which are substantial employers 

18 in their own right and provide necessary services to 

19 enable parents and other caregivers to return to 

20 work), colleges and universities (which are substan21 tial employers and supply the interstate market for 

22 higher-education services), religious, philanthropic 

23 and other nonprofit institutions (which are substan24 tial employers and provide necessary services to their 

25 communities), and local government agencies. 


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1 (10) Congress must also ensure that the Na2 tion’s health care workers and health care facilities 

3 are able to act fully to defeat the virus. 

4 (11) Congress must also safeguard its invest5 ment of taxpayer dollars under the CARES Act and 

6 other coronavirus legislation. Congress must ensure 

7 that those funds are used to help businesses and 

8 workers survive and recover from the economic cri9 sis, and to help health care workers and health care 

10 facilities defeat the virus. CARES Act funds cannot 

11 be diverted from these important purposes to line 

12 the pockets of the trial bar. 

13 (12) One of the chief impediments to the con14 tinued flow of interstate commerce as this public15 health crisis has unfolded is the risk of litigation. 

16 Small and large businesses, schools, colleges and 

17 universities, religious, philanthropic and other non18 profit institutions, and local government agencies 

19 confront the risk of a tidal wave of lawsuits accusing 

20 them of exposing employees, customers, students, 

21 and worshipers to coronavirus. Health care workers 

22 face the threat of lawsuits arising from their efforts 

23 to fight the virus. 

24 (13) They confront this litigation risk even as 

25 they work tirelessly to comply with the coronavirus 


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1 guidance, rules, and regulations issued by local gov2 ernments, State governments, and the Federal Gov3 ernment. They confront this risk notwithstanding 

4 equipment and staffing shortages. And they confront 

5 this risk while also grappling with constantly chang6 ing information on how best to protect employees, 

7 customers, students, and worshipers from the virus, 

8 and how best to treat it. 

9 (14) These lawsuits pose a substantial risk to 

10 interstate commerce because they threaten to keep 

11 small and large businesses, schools, colleges and uni12 versities, religious, philanthropic and other nonprofit 

13 institutions, and local government agencies from re14 opening for fear of expensive litigation that might 

15 prove to be meritless. These lawsuits further threat16 en to undermine the Nation’s fight against the virus 

17 by exposing our health care workers and health care 

18 facilities to liability for difficult medical decisions 

19 they have made under trying and uncertain cir20 cumstances. 

21 (15) These lawsuits also risk diverting taxpayer 

22 money provided under the CARES Act and other 

23 coronavirus legislation from its intended purposes to 

24 the pockets of opportunistic trial lawyers. 


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1 (16) This risk is not purely local. It is nec2 essarily national in scale. A patchwork of local and 

3 State rules governing liability in coronavirus-related 

4 lawsuits creates tremendous unpredictability for ev5 eryone participating in interstate commerce and acts 

6 as a significant drag on national recovery. The ag7 gregation of each individual potential liability risk 

8 poses a substantial and unprecedented threat to 

9 interstate commerce. 

10 (17) The accumulated economic risks for these 

11 potential defendants directly and substantially af12 fects interstate commerce. Individuals and entities 

13 potentially subject to coronavirus-related liability will 

14 structure their decisionmaking to avoid that liability. 

15 Small and large businesses, schools, colleges and 

16 universities, religious, philanthropic and other non17 profit institutions, and local government agencies 

18 may decline to reopen because of the risk of litiga19 tion. They may limit their output or engagement 

20 with customers and communities to avoid the risk of 

21 litigation. These individual economic decisions sub22 stantially affect interstate commerce because, as a 

23 whole, they will prevent the free and fair exchange 

24 of goods and services across State lines. Such eco25 nomic activity that, individually and in the aggreVerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317

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1 gate, substantially affects interstate commerce is 

2 precisely the sort of conduct that should be subject 

3 to congressional regulation. 

4 (18) Lawsuits against health care workers and 

5 facilities pose a similarly dangerous risk to interstate 

6 commerce. Interstate commerce will not truly re7 bound from this crisis until the virus is defeated, 

8 and that will not happen unless health care workers 

9 and facilities are free to combat vigorously the virus 

10 and treat patients with coronavirus and those other11 wise impacted by the response to coronavirus. 

12 (19) Subjecting health care workers and facili13 ties to onerous litigation even as they have done 

14 their level best to combat a virus about which very 

15 little was known when it arrived in the United 

16 States would divert important health care resources 

17 from hospitals and providers to courtrooms. 

18 (20) Such a diversion would substantially affect 

19 interstate commerce by degrading the national ca20 pacity for combating the virus and saving patients, 

21 thereby substantially elongating the period before 

22 interstate commerce could fully re-engage. 

23 (21) Congress also has the authority to deter24 mine the jurisdiction of the courts of the United 

25 States, to set the standards for causes of action they 


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1 can hear, and to establish the rules by which those 

2 causes of action should proceed. Congress therefore 

3 must act to set rules governing liability in 

4 coronavirus-related lawsuits. 

5 (22) These rules necessarily must be temporary 

6 and carefully tailored to the interstate crisis caused 

7 by the coronavirus pandemic. They must extend no 

8 further than necessary to meet this uniquely na9 tional crisis for which a patchwork of State and local 

10 tort laws are ill-suited. 

11 (23) Because of the national scope of the eco12 nomic and health care dangers posed by the risks of 

13 coronavirus-related lawsuits, establishing temporary 

14 rules governing liability for certain coronavirus-re15 lated tort claims is a necessary and proper means of 

16 carrying into execution Congress’s power to regulate 

17 commerce among the several States. 

18 (24) Because Congress must safeguard the in19 vestment of taxpayer dollars it made in the CARES 

20 Act and other coronavirus legislation, and ensure 

21 that they are used for their intended purposes and 

22 not diverted for other purposes, establishing tem23 porary rules governing liability for certain 

24 coronavirus-related tort claims is a necessary and 

25 proper means of carrying into execution Congress’s 


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1 power to provide for the general welfare of the 

2 United States. 

3 (b) PURPOSES.—Pursuant to the powers delegated to 

4 Congress by article I, section 8, clauses 1, 3, 9, and 18, 

5 and article III, section 2, clause 1 of the Constitution of 

6 the United States, the purposes of this Act are to— 

7 (1) establish necessary and consistent standards 

8 for litigating certain claims specific to the unique 

9 coronavirus pandemic; 

10 (2) prevent the overburdening of the court sys11 tems with undue litigation; 

12 (3) encourage planning, care, and appropriate 

13 risk management by small and large businesses, 

14 schools, colleges and universities, religious, philan15 thropic and other nonprofit institutions, local gov16 ernment agencies, and health care providers; 

17 (4) ensure that the Nation’s recovery from the 

18 coronavirus economic crisis is not burdened or 

19 slowed by the substantial risk of litigation; 

20 (5) prevent litigation brought to extract settle21 ments and enrich trial lawyers rather than vindicate 

22 meritorious claims; 

23 (6) protect interstate commerce from the bur24 dens of potentially meritless litigation; 


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1 (7) ensure the economic recovery proceeds with2 out artificial and unnecessary delay; 

3 (8) protect the interests of the taxpayers by en4 suring that emergency taxpayer support continues to 

5 aid businesses, workers, and health care providers 

6 rather than enrich trial lawyers; and 

7 (9) protect the highest and best ideals of the 

8 national economy, so businesses can produce and 

9 serve their customers, workers can work, teachers 

10 can teach, students can learn, and believers can wor11 ship. 

12 SEC. 3. DEFINITIONS. 

13 In this Act: 

14 (1) APPLICABLE GOVERNMENT STANDARDS

15 AND GUIDANCE.—The term ‘‘applicable government 

16 standards and guidance’’ means— 

17 (A) any mandatory standards or regula18 tions specifically concerning the prevention or 

19 mitigation of the transmission of coronavirus 

20 issued by the Federal Government, or a State 

21 or local government with jurisdiction over an in22 dividual or entity, whether provided by execu23 tive, judicial, or legislative order; and 

24 (B) with respect to an individual or entity 

25 that, at the time of the actual, alleged, feared, 


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1 or potential for exposure to coronavirus is not 

2 subject to any mandatory standards or regula3 tions described in subparagraph (A), any guid4 ance, standards, or regulations specifically con5 cerning the prevention or mitigation of the 

6 transmission of coronavirus issued by the Fed7 eral Government, or a State or local govern8 ment with jurisdiction over the individual or en9 tity. 

10 (2) BUSINESSES, SERVICES, ACTIVITIES, OR AC11 COMMODATIONS.—The term ‘‘businesses, services, 

12 activities, or accommodations’’ means any act by an 

13 individual or entity, irrespective of whether the act 

14 is carried on for profit, that is interstate or foreign 

15 commerce, that involves persons or things in inter16 state or foreign commerce, that involves the channels 

17 or instrumentalities of interstate or foreign com18 merce, that substantially affects interstate or foreign 

19 commerce, or that is otherwise an act subject to reg20 ulation by Congress as necessary and proper to 

21 carry into execution Congress’s powers to regulate 

22 interstate or foreign commerce or to spend funds for 

23 the general welfare. 

24 (3) CORONAVIRUS.—The term ‘‘coronavirus’’ 

25 means any disease, health condition, or threat of 


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1 harm caused by the SARS–CoV–2 virus or a virus 

2 mutating therefrom. 

3 (4) CORONAVIRUS EXPOSURE ACTION.— 

4 (A) IN GENERAL.—The term ‘‘coronavirus 

5 exposure action’’ means a civil action— 

6 (i) brought by a person who suffered 

7 personal injury or is at risk of suffering 

8 personal injury, or a representative of a 

9 person who suffered personal injury or is 

10 at risk of suffering personal injury; 

11 (ii) brought against an individual or 

12 entity engaged in businesses, services, ac13 tivities, or accommodations; and 

14 (iii) alleging that an actual, alleged, 

15 feared, or potential for exposure to 

16 coronavirus caused the personal injury or 

17 risk of personal injury, that— 

18 (I) occurred in the course of the 

19 businesses, services, activities, or ac20 commodations of the individual or en21 tity; and 

22 (II) occurred— 

23 (aa) on or after December 1, 

24 2019; and 

25 (bb) before the later of— 


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1 (AA) October 1, 2024; 

2 or 

3 (BB) the date on which 

4 there is no declaration by 

5 the Secretary of Health and 

6 Human Services under sec7 tion 319F–3(b) of the Pub8 lic Health Service Act (42 

9 U.S.C. 247d–6d(b)) (relat10 ing to medical counter11 measures) that is in effect 

12 with respect to coronavirus, 

13 including the Declaration 

14 Under the Public Readiness 

15 and Emergency Prepared16 ness Act for Medical Coun17 termeasures Against 

18 COVID–19 (85 Fed. Reg. 

19 15198) issued by the Sec20 retary of Health and Human 

21 Services on March 17, 2020. 

22 (B) EXCLUSIONS.—The term ‘‘coronavirus 

23 exposure action’’ does not include— 

24 (i) a criminal, civil, or administrative 

25 enforcement action brought by the Federal 


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1 Government or any State, local, or Tribal 

2 government; or 

3 (ii) a claim alleging intentional dis4 crimination on the basis of race, color, na5 tional origin, religion, sex (including preg6 nancy), disability, genetic information, or 

7 age. 

8 (5) CORONAVIRUS-RELATED ACTION.—The 

9 term ‘‘coronavirus-related action’’ means a 

10 coronavirus exposure action or a coronavirus-related 

11 medical liability action. 

12 (6) CORONAVIRUS-RELATED HEALTH CARE

13 SERVICES.—The term ‘‘coronavirus-related health 

14 care services’’ means services provided by a health 

15 care provider, regardless of the location where the 

16 services are provided, that relate to— 

17 (A) the diagnosis, prevention, or treatment 

18 of coronavirus; 

19 (B) the assessment or care of an individual 

20 with a confirmed or suspected case of 

21 coronavirus; or 

22 (C) the care of any individual who is ad23 mitted to, presents to, receives services from, or 

24 resides at, a health care provider for any pur25 pose during the period of a Federal emergency 


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1 declaration concerning coronavirus, if such pro2 vider’s decisions or activities with respect to 

3 such individual are impacted as a result of 

4 coronavirus. 

5 (7) CORONAVIRUS-RELATED MEDICAL LIABIL6 ITY ACTION.— 

7 (A) IN GENERAL.—The term ‘‘coronavirus8 related medical liability action’’ means a civil 

9 action— 

10 (i) brought by a person who suffered 

11 personal injury, or a representative of a 

12 person who suffered personal injury; 

13 (ii) brought against a health care pro14 vider; and 

15 (iii) alleging any harm, damage, 

16 breach, or tort resulting in the personal in17 jury alleged to have been caused by, be 

18 arising out of, or be related to a health 

19 care provider’s act or omission in the 

20 course of arranging for or providing 

21 coronavirus-related health care services 

22 that occurred— 

23 (I) on or after December 1, 

24 2019; and 

25 (II) before the later of— 


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1 (aa) October 1, 2024; or 

2 (bb) the date on which there 

3 is no declaration by the Secretary 

4 of Health and Human Services 

5 under section 319F–3(b) of the 

6 Public Health Service Act (42 

7 U.S.C. 247d–6d(b)) (relating to 

8 covered countermeasures) that is 

9 in effect with respect to 

10 coronavirus, including the Dec11 laration Under the Public Readi12 ness and Emergency Prepared13 ness Act for Medical Counter14 measures Against COVID–19 (85 

15 Fed. Reg. 15198) issued by the 

16 Secretary of Health and Human 

17 Services on March 17, 2020. 

18 (B) EXCLUSIONS.—The term 

19 ‘‘coronavirus-related medical liability action’’ 

20 does not include— 

21 (i) a criminal, civil, or administrative 

22 enforcement action brought by the Federal 

23 Government or any State, local, or Tribal 

24 government; or 


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1 (ii) a claim alleging intentional dis2 crimination on the basis of race, color, na3 tional origin, religion, sex (including preg4 nancy), disability, genetic information, or 

5 age. 

6 (8) EMPLOYER.—The term ‘‘employer’’— 

7 (A) means any person serving as an em8 ployer or acting directly in the interest of an 

9 employer in relation to an employee; 

10 (B) includes a public agency; and 

11 (C) does not include any labor organization 

12 (other than when acting as an employer) or any 

13 person acting in the capacity of officer or agent 

14 of such labor organization. 

15 (9) GOVERNMENT.—The term ‘‘government’’ 

16 means an agency, instrumentality, or other entity of 

17 the Federal Government, a State government (in18 cluding multijurisdictional agencies, instrumental19 ities, and entities), a local government, or a Tribal 

20 government. 

21 (10) GROSS NEGLIGENCE.—The term ‘‘gross 

22 negligence’’ means a conscious, voluntary act or 

23 omission in reckless disregard of— 

24 (A) a legal duty; 

25 (B) the consequences to another party; and 


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1 (C) applicable government standards and 

2 guidance. 

3 (11) HARM.—The term ‘‘harm’’ includes— 

4 (A) physical and nonphysical contact that 

5 results in personal injury to an individual; and 

6 (B) economic and noneconomic losses. 

7 (12) HEALTH CARE PROVIDER.— 

8 (A) IN GENERAL.—The term ‘‘health care 

9 provider’’ means any person, including an 

10 agent, volunteer (subject to subparagraph (C)), 

11 contractor, employee, or other entity, who is— 

12 (i) required by Federal or State law to 

13 be licensed, registered, or certified to pro14 vide health care and is so licensed, reg15 istered, or certified (or is exempt from any 

16 such requirement); 

17 (ii) otherwise authorized by Federal or 

18 State law to provide care (including serv19 ices and supports furnished in a home or 

20 community-based residential setting under 

21 the State Medicaid program or a waiver of 

22 that program); or 

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1 vider, health care professional, health care 

2 institution, or health care facility. 

3 (B) INCLUSION OF ADMINISTRATORS, SU4 PERVISORS, ETC.—The term ‘‘health care pro5 vider’’ includes a health care facility adminis6 trator, executive, supervisor, board member or 

7 trustee, or another individual responsible for di8 recting, supervising, or monitoring the provision 

9 of coronavirus-related health care services in a 

10 comparable role. 

11 (C) INCLUSION OF VOLUNTEERS.—The 

12 term ‘‘health care provider’’ includes volunteers 

13 that meet the following criteria: 

14 (i) The volunteer is a health care pro15 fessional providing coronavirus-related 

16 health care services. 

17 (ii) The act or omission by the volun18 teer occurs— 

19 (I) in the course of providing 

20 health care services; 

21 (II) in the health care profes22 sional’s capacity as a volunteer; 

23 (III) in the course of providing 

24 health care services that— 


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1 (aa) are within the scope of 

2 the license, registration, or cer3 tification of the volunteer, as de4 fined by the State of licensure, 

5 registration, or certification; and 

6 (bb) do not exceed the scope 

7 of license, registration, or certifi8 cation of a substantially similar 

9 health professional in the State 

10 in which such act or omission oc11 curs; and 

12 (IV) in a good-faith belief that 

13 the individual being treated is in need 

14 of health care services. 

15 (13) INDIVIDUAL OR ENTITY.—The term ‘‘indi16 vidual or entity’’ means— 

17 (A) any natural person, corporation, com18 pany, trade, business, firm, partnership, joint 

19 stock company, educational institution, labor 

20 organization, or similar organization or group 

21 of organizations; 

22 (B) any nonprofit organization, foundation, 

23 society, or association organized for religious, 

24 charitable, educational, or other purposes; or 

25 (C) any State, Tribal, or local government. 


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1 (14) LOCAL GOVERNMENT.—The term ‘‘local 

2 government’’ means any unit of government within 

3 a State, including a— 

4 (A) county; 

5 (B) borough; 

6 (C) municipality; 

7 (D) city; 

8 (E) town; 

9 (F) township; 

10 (G) parish; 

11 (H) local public authority, including any 

12 public housing agency under the United States 

13 Housing Act of 1937 (42 U.S.C. 1437 et seq.); 

14 (I) special district; 

15 (J) school district; 

16 (K) intrastate district; 

17 (L) council of governments, whether or not 

18 incorporated as a nonprofit corporation under 

19 State law; and 

20 (M) agency or instrumentality of— 

21 (i) multiple units of local government 

22 (including units of local government lo23 cated in different States); or 

24 (ii) an intra-State unit of local gov25 ernment. 


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1 (15) MANDATORY.—The term ‘‘mandatory’’, 

2 with respect to standards or regulations, means the 

3 standards or regulations are themselves enforceable 

4 by the issuing government through criminal, civil, or 

5 administrative action. 

6 (16) PERSONAL INJURY.—The term ‘‘personal 

7 injury’’— 

8 (A) means actual or potential physical in9 jury to an individual or death caused by a phys10 ical injury; and 

11 (B) includes mental suffering, emotional 

12 distress, or similar injuries suffered by an indi13 vidual in connection with a physical injury. 

14 (17) STATE.—The term ‘‘State’’— 

15 (A) means any State of the United States, 

16 the District of Columbia, the Commonwealth of 

17 Puerto Rico, the Northern Mariana Islands, the 

18 United States Virgin Islands, Guam, American 

19 Samoa, and any other territory or possession of 

20 the United States, and any political subdivision 

21 or instrumentality thereof; and 

22 (B) includes any agency or instrumentality 

23 of 2 or more of the entities described in sub24 paragraph (A). 

25 (18) TRIBAL GOVERNMENT.— 


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1 (A) IN GENERAL.—The term ‘‘Tribal gov2 ernment’’ means the recognized governing body 

3 of any Indian tribe included on the list pub4 lished by the Secretary of the Interior pursuant 

5 to section 104(a) of the Federally Recognized 

6 Indian Tribe List Act of 1994 (25 U.S.C. 

7 5131(a)). 

8 (B) INCLUSION.—The term ‘‘Tribal gov9 ernment’’ includes any subdivision (regardless 

10 of the laws and regulations of the jurisdiction 

11 in which the subdivision is organized or incor12 porated) of a governing body described in sub13 paragraph (A) that— 

14 (i) is wholly owned by that governing 

15 body; and 

16 (ii) has been delegated the right to ex17 ercise 1 or more substantial governmental 

18 functions of the governing body. 

19 (19) WILLFUL MISCONDUCT.—The term ‘‘will20 ful misconduct’’ means an act or omission that is 

21 taken— 

22 (A) intentionally to achieve a wrongful 

23 purpose; 

24 (B) knowingly without legal or factual jus25 tification; and 


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1 (C) in disregard of a known or obvious risk 

2 that is so great as to make it highly probable 

3 that the harm will outweigh the benefit. 

4 TITLE I—LIABILITY RELIEF 

5 Subtitle A—Liability Limitations 

6 for Individuals and Entities En7 gaged in Businesses, Services, 

8 Activities, or Accommodations 

9 SEC. 121. APPLICATION OF SUBTITLE. 

10 (a) CAUSE OF ACTION; TRIBAL SOVEREIGN IMMU11 NITY.— 

12 (1) CAUSE OF ACTION.— 

13 (A) IN GENERAL.—This subtitle creates an 

14 exclusive cause of action for coronavirus expo15 sure actions. 

16 (B) LIABILITY.—A plaintiff may prevail in 

17 a coronavirus exposure action only in accord18 ance with the requirements of this title. 

19 (C) APPLICATION.—The provisions of this 

20 subtitle shall apply to— 

21 (i) any cause of action that is a 

22 coronavirus exposure action that was filed 

23 before the date of enactment of this Act 

24 and that is pending on such date of enact25 ment; and 


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1 (ii) any coronavirus exposure action 

2 filed on or after such date of enactment. 

3 (2) PRESERVATION OF LIABILITY LIMITS AND

4 DEFENSES.—Except as otherwise explicitly provided 

5 in this subtitle, nothing in this subtitle expands any 

6 liability otherwise imposed or limits any defense oth7 erwise available under Federal, State, or Tribal law. 

8 (3) IMMUNITY.—Nothing in this subtitle abro9 gates the immunity of any State, or waives the im10 munity of any Tribal government. The limitations on 

11 liability provided under this subtitle shall control in 

12 any action properly filed against a State or Tribal 

13 government pursuant to a duly executed waiver by 

14 the State or Tribe of sovereign immunity and stat15 ing claims within the scope of this subtitle. 

16 (b) PREEMPTION AND SUPERSEDURE.— 

17 (1) IN GENERAL.—Except as described in para18 graphs (2) through (6), this subtitle preempts and 

19 supersedes any Federal, State, or Tribal law, includ20 ing statutes, regulations, rules, or standards that are 

21 enacted, promulgated, or established under common 

22 law, related to recovery for personal injuries caused 

23 by actual, alleged, feared, or potential for exposure 

24 to coronavirus. 


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1 (2) STRICTER LAWS NOT PREEMPTED OR SU2 PERSEDED.—Nothing in this subtitle shall be con3 strued to affect the applicability of any provision of 

4 any Federal, State, or Tribal law that imposes 

5 stricter limits on damages or liabilities for personal 

6 injury caused by, arising out of, or related to an ac7 tual, alleged, feared, or potential for exposure to 

8 coronavirus, or otherwise affords greater protection 

9 to defendants in any coronavirus exposure action, 

10 than are provided in this subtitle. Any such provi11 sion of Federal, State, or Tribal law shall be applied 

12 in addition to the requirements of this subtitle and 

13 not in lieu thereof. 

14 (3) WORKERS’ COMPENSATION LAWS NOT PRE15 EMPTED OR SUPERSEDED.—Nothing in this subtitle 

16 shall be construed to affect the applicability of any 

17 State or Tribal law providing for a workers’ com18 pensation scheme or program, or to preempt or su19 persede an exclusive remedy under such scheme or 

20 program. 

21 (4) ENFORCEMENT ACTIONS.—Nothing in this 

22 subtitle shall be construed to impair, limit, or affect 

23 the authority of the Federal Government, or of any 

24 State, local, or Tribal government, to bring any 


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1 criminal, civil, or administrative enforcement action 

2 against any individual or entity. 

3 (5) DISCRIMINATION CLAIMS.—Nothing in this 

4 subtitle shall be construed to affect the applicability 

5 of any provision of any Federal, State, or Tribal law 

6 that creates a cause of action for intentional dis7 crimination on the basis of race, color, national ori8 gin, religion, sex (including pregnancy), disability, 

9 genetic information, or age. 

10 (6) MAINTENANCE AND CURE.—Nothing in this 

11 subtitle shall be construed to affect a seaman’s right 

12 to claim maintenance and cure benefits. 

13 (c) STATUTE OF LIMITATIONS.—A coronavirus expo14 sure action may not be commenced in any Federal, State, 

15 or Tribal government court later than 1 year after the 

16 date of the actual, alleged, feared, or potential for expo17 sure to coronavirus. 

18 SEC. 122. LIABILITY; SAFE HARBOR. 

19 (a) REQUIREMENTS FOR LIABILITY FOR EXPOSURE

20 TO CORONAVIRUS.—Notwithstanding any other provision 

21 of law, and except as otherwise provided in this section, 

22 no individual or entity engaged in businesses, services, ac23 tivities, or accommodations shall be liable in any 

24 coronavirus exposure action unless the plaintiff can prove 

25 by clear and convincing evidence that— 


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1 (1) in engaging in the businesses, services, ac2 tivities, or accommodations, the individual or entity 

3 was not making reasonable efforts in light of all the 

4 circumstances to comply with the applicable govern5 ment standards and guidance in effect at the time 

6 of the actual, alleged, feared, or potential for expo7 sure to coronavirus; 

8 (2) the individual or entity engaged in gross 

9 negligence or willful misconduct that caused an ac10 tual exposure to coronavirus; and 

11 (3) the actual exposure to coronavirus caused 

12 the personal injury of the plaintiff. 

13 (b) REASONABLE EFFORTS TO COMPLY.— 

14 (1) CONFLICTING APPLICABLE GOVERNMENT

15 STANDARDS AND GUIDANCE.— 

16 (A) IN GENERAL.—If more than 1 govern17 ment to whose jurisdiction an individual or enti18 ty is subject issues applicable government 

19 standards and guidance, and the applicable gov20 ernment standards and guidance issued by 1 or 

21 more of the governments conflicts with the ap22 plicable government standards and guidance 

23 issued by 1 or more of the other governments, 

24 the individual or entity shall be considered to 

25 have made reasonable efforts in light of all the 


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1 circumstances to comply with the applicable 

2 government standards and guidance for pur3 poses of subsection (a)(1) unless the plaintiff 

4 establishes by clear and convincing evidence 

5 that the individual or entity was not making 

6 reasonable efforts in light of all the cir7 cumstances to comply with any of the con8 flicting applicable government standards and 

9 guidance issued by any government to whose ju10 risdiction the individual or entity is subject. 

11 (B) EXCEPTION.—If mandatory standards 

12 and regulations constituting applicable govern13 ment standards and guidance issued by any 

14 government with jurisdiction over the individual 

15 or entity conflict with applicable government 

16 standards and guidance that are not mandatory 

17 and are issued by any other government with 

18 jurisdiction over the individual or entity or by 

19 the same government that issued the mandatory 

20 standards and regulations, the plaintiff may es21 tablish that the individual or entity did not 

22 make reasonable efforts in light of all the cir23 cumstances to comply with the applicable gov24 ernment standards and guidance for purposes 

25 of subsection (a)(1) by establishing by clear and 


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1 convincing evidence that the individual or entity 

2 was not making reasonable efforts in light of all 

3 the circumstances to comply with the manda4 tory standards and regulations to which the in5 dividual or entity was subject. 

6 (2) WRITTEN OR PUBLISHED POLICY.— 

7 (A) IN GENERAL.—If an individual or enti8 ty engaged in businesses, services, activities, or 

9 accommodations maintained a written or pub10 lished policy on the mitigation of transmission 

11 of coronavirus at the time of the actual, alleged, 

12 feared, or potential for exposure to coronavirus 

13 that complied with, or was more protective 

14 than, the applicable government standards and 

15 guidance to which the individual or entity was 

16 subject, the individual or entity shall be pre17 sumed to have made reasonable efforts in light 

18 of all the circumstances to comply with the ap19 plicable government standards and guidance for 

20 purposes of subsection (a)(1). 

21 (B) REBUTTAL.—The plaintiff may rebut 

22 the presumption under subparagraph (A) by es23 tablishing that the individual or entity was not 

24 complying with the written or published policy 


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•S 4317 IS

1 at the time of the actual, alleged, feared, or po2 tential for exposure to coronavirus. 

3 (C) ABSENCE OF A WRITTEN OR PUB4 LISHED POLICY.—The absence of a written or 

5 published policy shall not give rise to a pre6 sumption that the individual or entity did not 

7 make reasonable efforts in light of all the cir8 cumstances to comply with the applicable gov9 ernment standards and guidance for purposes 

10 of subsection (a)(1). 

11 (3) TIMING.—For purposes of subsection 

12 (a)(1), a change to a policy or practice by an indi13 vidual or entity before or after the actual, alleged, 

14 feared, or potential for exposure to coronavirus, shall 

15 not be evidence of liability for the actual, alleged, 

16 feared, or potential for exposure to coronavirus. 

17 (c) THIRD PARTIES.—No individual or entity shall be 

18 held liable in a coronavirus exposure action for the acts 

19 or omissions of a third party, unless— 

20 (1) the individual or entity had an obligation 

21 under general common law principles to control the 

22 acts or omissions of the third party; or 

23 (2) the third party was an agent of the indi24 vidual or entity. 


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1 (d) MITIGATION.—Changes to the policies, practices, 

2 or procedures of an individual or entity for complying with 

3 the applicable government standards and guidance after 

4 the time of the actual, alleged, feared, or potential for ex5 posure to coronavirus, shall not be considered evidence of 

6 liability or culpability. 

7 Subtitle B—Liability Limitations 

8 for Health Care Providers 

9 SEC. 141. APPLICATION OF SUBTITLE. 

10 (a) IN GENERAL.— 

11 (1) CAUSE OF ACTION.— 

12 (A) IN GENERAL.—This subtitle creates an 

13 exclusive cause of action for coronavirus-related 

14 medical liability actions. 

15 (B) LIABILITY.—A plaintiff may prevail in 

16 a coronavirus-related medical liability action 

17 only in accordance with the requirements of this 

18 title. 

19 (C) APPLICATION.—The provisions of this 

20 subtitle shall apply to— 

21 (i) any cause of action that is a 

22 coronavirus-related medical liability action 

23 that was filed before the date of enactment 

24 of this Act and that is pending on such 

25 date of enactment; and 


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1 (ii) any coronavirus-related medical li2 ability action filed on or after such date of 

3 enactment. 

4 (2) PRESERVATION OF LIABILITY LIMITS AND

5 DEFENSES.—Except as otherwise explicitly provided 

6 in this subtitle, nothing in this subtitle expands any 

7 liability otherwise imposed or limits any defense oth8 erwise available under Federal, State, or Tribal law. 

9 (3) IMMUNITY.—Nothing in this subtitle abro10 gates the immunity of any State, or waives the im11 munity of any Tribal government. The limitations on 

12 liability provided under this subtitle shall control in 

13 any action properly filed against a State or Tribal 

14 government pursuant to a duly executed waiver by 

15 the State or Tribe of sovereign immunity and stat16 ing claims within the scope of this subtitle. 

17 (b) PREEMPTION AND SUPERSEDURE.— 

18 (1) IN GENERAL.—Except as described in para19 graphs (2) through (6), this subtitle preempts and 

20 supersedes any Federal, State, or Tribal law, includ21 ing statutes, regulations, rules, or standards that are 

22 enacted, promulgated, or established under common 

23 law, related to recovery for personal injuries caused 

24 by, arising out of, or related to an act or omission 

25 by a health care provider in the course of arranging 


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•S 4317 IS

1 for or providing coronavirus-related health care serv2 ices. 

3 (2) STRICTER LAWS NOT PREEMPTED OR SU4 PERSEDED.—Nothing in this subtitle shall be con5 strued to affect the applicability of any provision of 

6 any Federal, State, or Tribal law that imposes 

7 stricter limits on damages or liabilities for personal 

8 injury caused by, arising out of, or related to an act 

9 or omission by a health care provider in the course 

10 of arranging for or providing coronavirus-related 

11 health care services, or otherwise affords greater 

12 protection to defendants in any coronavirus-related 

13 medical liability action than are provided in this sub14 title. Any such provision of Federal, State, or Tribal 

15 law shall be applied in addition to the requirements 

16 of this subtitle and not in lieu thereof. 

17 (3) ENFORCEMENT ACTIONS.—Nothing in this 

18 subtitle shall be construed to impair, limit, or affect 

19 the authority of the Federal Government, or of any 

20 State, local, or Tribal government to bring any 

21 criminal, civil, or administrative enforcement action 

22 against any health care provider. 

23 (4) DISCRIMINATION CLAIMS.—Nothing in this 

24 subtitle shall be construed to affect the applicability 

25 of any provision of any Federal, State, or Tribal law 


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•S 4317 IS

1 that creates a cause of action for intentional dis2 crimination on the basis of race, color, national ori3 gin, religion, sex (including pregnancy), disability, 

4 genetic information, or age. 

5 (5) PUBLIC READINESS AND EMERGENCY PRE6 PAREDNESS.—Nothing in this subtitle shall be con7 strued to affect the applicability of section 319F–3 

8 of the Public Health Service Act (42 U.S.C. 247d– 

9 6d) to any act or omission involving a covered coun10 termeasure, as defined in subsection (i) of such sec11 tion in arranging for or providing coronavirus-re12 lated health care services. Nothing in this subtitle 

13 shall be construed to affect the applicability of sec14 tion 319F–4 of the Public Health Service Act (42 

15 U.S.C. 247d–6e). 

16 (6) VACCINE INJURY.—To the extent that title 

17 XXI of the Public Health Service Act (42 U.S.C. 

18 300aa–1 et seq.) establishes a Federal rule applica19 ble to a civil action brought for a vaccine-related in20 jury or death, this subtitle does not affect the appli21 cation of that rule to such an action. 

22 (c) STATUTE OF LIMITATIONS.—A coronavirus-re23 lated medical liability action may not be commenced in 

24 any Federal, State, or Tribal government court later than 


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1 1 year after the date of the alleged harm, damage, breach, 

2 or tort, unless tolled for— 

3 (1) proof of fraud; 

4 (2) intentional concealment; or 

5 (3) the presence of a foreign body, which has no 

6 therapeutic or diagnostic purpose or effect, in the 

7 person of the injured person. 

8 SEC. 142. LIABILITY FOR HEALTH CARE PROFESSIONALS 

9 AND HEALTH CARE FACILITIES DURING 

10 CORONAVIRUS PUBLIC HEALTH EMERGENCY. 

11 (a) REQUIREMENTS FOR LIABILITY FOR

12 CORONAVIRUS-RELATED HEALTH CARE SERVICES.—Not13 withstanding any other provision of law, and except as 

14 provided in subsection (b), no health care provider shall 

15 be liable in a coronavirus-related medical liability action 

16 unless the plaintiff can prove by clear and convincing evi17 dence— 

18 (1) gross negligence or willful misconduct by 

19 the health care provider; and 

20 (2) that the alleged harm, damage, breach, or 

21 tort resulting in the personal injury was directly 

22 caused by the alleged gross negligence or willful mis23 conduct. 

24 (b) EXCEPTIONS.—For purposes of this section, acts, 

25 omissions, or decisions resulting from a resource or staffVerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317

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•S 4317 IS

1 ing shortage shall not be considered willful misconduct or 

2 gross negligence. 

3 Subtitle C—Substantive and Proce4 dural Provisions for 

5 Coronavirus-related Actions 

6 Generally 

7 SEC. 161. JURISDICTION. 

8 (a) JURISDICTION.—The district courts of the United 

9 States shall have concurrent original jurisdiction of any 

10 coronavirus-related action. 

11 (b) REMOVAL.— 

12 (1) IN GENERAL.—A coronavirus-related action 

13 of which the district courts of the United States 

14 have original jurisdiction under subsection (a) that 

15 is brought in a State or Tribal government court 

16 may be removed to a district court of the United 

17 States in accordance with section 1446 of title 28, 

18 United States Code, except that— 

19 (A) notwithstanding subsection (b)(2)(A) 

20 of such section, such action may be removed by 

21 any defendant without the consent of all de22 fendants; and 

23 (B) notwithstanding subsection (b)(1) of 

24 such section, for any cause of action that is a 

25 coronavirus-related action that was filed in a 


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•S 4317 IS

1 State court before the date of enactment of this 

2 Act and that is pending in such court on such 

3 date of enactment, and of which the district 

4 courts of the United States have original juris5 diction under subsection (a), any defendant 

6 may file a notice of removal of a civil action or 

7 proceeding within 30 days of the date of enact8 ment of this Act. 

9 (2) PROCEDURE AFTER REMOVAL.—Section 

10 1447 of title 28, United States Code, shall apply to 

11 any removal of a case under paragraph (1), except 

12 that, notwithstanding subsection (d) of such section, 

13 a court of appeals of the United States shall accept 

14 an appeal from an order of a district court granting 

15 or denying a motion to remand the case to the State 

16 or Tribal government court from which it was re17 moved if application is made to the court of appeals 

18 of the United States not later than 10 days after the 

19 entry of the order. 

20 SEC. 162. LIMITATIONS ON SUITS. 

21 (a) JOINT AND SEVERAL LIABILITY LIMITATIONS.— 

22 (1) IN GENERAL.—An individual or entity 

23 against whom a final judgment is entered in any 

24 coronavirus-related action shall be liable solely for 

25 the portion of the judgment that corresponds to the 


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•S 4317 IS

1 relative and proportionate responsibility of that indi2 vidual or entity. In determining the percentage of re3 sponsibility of any defendant, the trier of fact shall 

4 determine that percentage as a percentage of the 

5 total fault of all individuals or entities, including the 

6 plaintiff, who caused or contributed to the total loss 

7 incurred by the plaintiff. 

8 (2) PROPORTIONATE LIABILITY.— 

9 (A) DETERMINATION OF RESPONSI10 BILITY.—In any coronavirus-related action, the 

11 court shall instruct the jury to answer special 

12 interrogatories, or, if there is no jury, the court 

13 shall make findings with respect to each defend14 ant, including defendants who have entered into 

15 settlements with the plaintiff or plaintiffs, con16 cerning the percentage of responsibility, if any, 

17 of each defendant, measured as a percentage of 

18 the total fault of all individuals or entities who 

19 caused or contributed to the loss incurred by 

20 the plaintiff. 

21 (B) FACTORS FOR CONSIDERATION.—In 

22 determining the percentage of responsibility 

23 under this subsection, the trier of fact shall 

24 consider— 


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•S 4317 IS

1 (i) the nature of the conduct of each 

2 individual or entity found to have caused 

3 or contributed to the loss incurred by the 

4 plaintiff; and 

5 (ii) the nature and extent of the caus6 al relationship between the conduct of each 

7 such individual or entity and the damages 

8 incurred by the plaintiff. 

9 (3) JOINT LIABILITY FOR SPECIFIC INTENT OR

10 FRAUD.—Notwithstanding paragraph (1), in any 

11 coronavirus-related action the liability of a defendant 

12 is joint and several if the trier of fact specifically de13 termines that the defendant— 

14 (A) acted with specific intent to injure the 

15 plaintiff; or 

16 (B) knowingly committed fraud. 

17 (4) RIGHT TO CONTRIBUTION NOT AF18 FECTED.—Nothing in this subsection affects the 

19 right, under any other law, of a defendant to con20 tribution with respect to another defendant deter21 mined under paragraph (3) to have acted with spe22 cific intent to injure the plaintiff or to have know23 ingly committed fraud. 

24 (b) LIMITATIONS ON DAMAGES.—In any coronavirus25 related action— 


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1 (1) the award of compensatory damages shall 

2 be limited to economic losses incurred as the result 

3 of the personal injury, harm, damage, breach, or 

4 tort, except that the court may award damages for 

5 noneconomic losses if the trier of fact determines 

6 that the personal injury, harm, damage, breach, or 

7 tort was caused by the willful misconduct of the in8 dividual or entity; 

9 (2) punitive damages— 

10 (A) may be awarded only if the trier of 

11 fact determines that the personal injury to the 

12 plaintiff was caused by the willful misconduct of 

13 the individual or entity; and 

14 (B) may not exceed the amount of compen15 satory damages awarded; and 

16 (3) the amount of monetary damages awarded 

17 to a plaintiff shall be reduced by the amount of com18 pensation received by the plaintiff from another 

19 source in connection with the personal injury, harm, 

20 damage, breach, or tort, such as insurance or reim21 bursement by a government. 

22 (c) PREEMPTION AND SUPERSEDURE.— 

23 (1) IN GENERAL.—Except as described in para24 graphs (2) and (3), this section preempts and super25 sedes any Federal, State, or Tribal law, including 


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•S 4317 IS

1 statutes, regulations, rules, or standards that are en2 acted, promulgated, or established under common 

3 law, related to joint and several liability, propor4 tionate or contributory liability, contribution, or the 

5 award of damages for any coronavirus-related ac6 tion. 

7 (2) STRICTER LAWS NOT PREEMPTED OR SU8 PERSEDED.—Nothing in this section shall be con9 strued to affect the applicability of any provision of 

10 any Federal, State, or Tribal law that— 

11 (A) limits the liability of a defendant in a 

12 coronavirus-related action to a lesser degree of 

13 liability than the degree of liability determined 

14 under this section; 

15 (B) otherwise affords a greater degree of 

16 protection from joint or several liability than is 

17 afforded by this section; or 

18 (C) limits the damages that can be recov19 ered from a defendant in a coronavirus-related 

20 action to a lesser amount of damages than the 

21 amount determined under this section. 

22 (3) PUBLIC READINESS AND EMERGENCY PRE23 PAREDNESS.—Nothing in this subtitle shall be con24 strued to affect the applicability of section 319F–3 

25 of the Public Health Service Act (42 U.S.C. 247d– 


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•S 4317 IS

1 6d) to any act or omission involving a covered coun2 termeasure, as defined in subsection (i) of such sec3 tion in arranging for or providing coronavirus-re4 lated health care services. Nothing in this subtitle 

5 shall be construed to affect the applicability of sec6 tion 319F–4 of the Public Health Service Act (42 

7 U.S.C. 247d–6e). 

8 SEC. 163. PROCEDURES FOR SUIT IN DISTRICT COURTS OF 

9 THE UNITED STATES. 

10 (a) PLEADING WITH PARTICULARITY.—In any 

11 coronavirus-related action filed in or removed to a district 

12 court of the United States— 

13 (1) the complaint shall plead with particu14 larity— 

15 (A) each element of the plaintiff’s claim; 

16 and 

17 (B) with respect to a coronavirus exposure 

18 action, all places and persons visited by the per19 son on whose behalf the complaint was filed and 

20 all persons who visited the residence of the per21 son on whose behalf the complaint was filed 

22 during the 14-day-period before the onset of the 

23 first symptoms allegedly caused by coronavirus, 

24 including— 


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1 (i) each individual or entity against 

2 which a complaint is filed, along with the 

3 factual basis for the belief that such indi4 vidual or entity was a cause of the per5 sonal injury alleged; and 

6 (ii) every other person or place visited 

7 by the person on whose behalf the com8 plaint was filed and every other person 

9 who visited the residence of the person on 

10 whose behalf the complaint was filed dur11 ing such period, along with the factual 

12 basis for the belief that these persons and 

13 places were not the cause of the personal 

14 injury alleged; and 

15 (2) the complaint shall plead with particularity 

16 each alleged act or omission constituting gross neg17 ligence or willful misconduct that resulted in per18 sonal injury, harm, damage, breach, or tort. 

19 (b) SEPARATE STATEMENTS CONCERNING THE NA20 TURE AND AMOUNT OF DAMAGES AND REQUIRED STATE

21 OF MIND.— 

22 (1) NATURE AND AMOUNT OF DAMAGES.—In 

23 any coronavirus-related action filed in or removed to 

24 a district court of the United States in which mone25 tary damages are requested, there shall be filed with 


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•S 4317 IS

1 the complaint a statement of specific information as 

2 to the nature and amount of each element of dam3 ages and the factual basis for the damages calcula4 tion. 

5 (2) REQUIRED STATE OF MIND.—In any 

6 coronavirus-related action filed in or removed to a 

7 district court of the United States in which a claim 

8 is asserted on which the plaintiff may prevail only on 

9 proof that the defendant acted with a particular 

10 state of mind, there shall be filed with the com11 plaint, with respect to each element of that claim, a 

12 statement of the facts giving rise to a strong infer13 ence that the defendant acted with the required 

14 state of mind. 

15 (c) VERIFICATION AND MEDICAL RECORDS.— 

16 (1) VERIFICATION REQUIREMENT.— 

17 (A) IN GENERAL.—The complaint in a 

18 coronavirus-related action filed in or removed to 

19 a district court of the United States shall in20 clude a verification, made by affidavit of the 

21 plaintiff under oath, stating that the pleading is 

22 true to the knowledge of the deponent, except 

23 as to matters specifically identified as being al24 leged on information and belief, and that as to 

25 those matters the plaintiff believes it to be true. 


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1 (B) IDENTIFICATION OF MATTERS AL2 LEGED UPON INFORMATION AND BELIEF.—Any 

3 matter that is not specifically identified as 

4 being alleged upon the information and belief of 

5 the plaintiff, shall be regarded for all purposes, 

6 including a criminal prosecution, as having been 

7 made upon the knowledge of the plaintiff. 

8 (2) MATERIALS REQUIRED.—In any 

9 coronavirus-related action filed in or removed to a 

10 district court of the United States, the plaintiff shall 

11 file with the complaint— 

12 (A) an affidavit by a physician or other 

13 qualified medical expert who did not treat the 

14 person on whose behalf the complaint was filed 

15 that explains the basis for such physician’s or 

16 other qualified medical expert’s belief that such 

17 person suffered the personal injury, harm, dam18 age, breach, or tort alleged in the complaint; 

19 and 

20 (B) certified medical records documenting 

21 the alleged personal injury, harm, damage, 

22 breach, or tort. 

23 (d) APPLICATION WITH FEDERAL RULES OF CIVIL

24 PROCEDURE.—This section applies exclusively to any 

25 coronavirus-related action filed in or removed to a district 


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•S 4317 IS

1 court of the United States and, except to the extent that 

2 this section requires additional information to be con3 tained in or attached to pleadings, nothing in this section 

4 is intended to amend or otherwise supersede applicable 

5 rules of Federal civil procedure. 

6 (e) CIVIL DISCOVERY FOR ACTIONS IN DISTRICT

7 COURTS OF THE UNITED STATES.— 

8 (1) TIMING.—Notwithstanding any other provi9 sion of law, in any coronavirus-related action filed in 

10 or removed to a district court of the United States, 

11 no discovery shall be allowed before— 

12 (A) the time has expired for the defendant 

13 to answer or file a motion to dismiss; and 

14 (B) if a motion to dismiss is filed, the 

15 court has ruled on the motion. 

16 (2) STANDARD.—Notwithstanding any other 

17 provision of law, the court in any coronavirus-related 

18 action that is filed in or removed to a district court 

19 of the United States— 

20 (A) shall permit discovery only with re21 spect to matters directly related to material 

22 issues contested in the coronavirus-related ac23 tion; and 

24 (B) may compel a response to a discovery 

25 request (including a request for admission, an 


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1 interrogatory, a request for production of docu2 ments, or any other form of discovery request) 

3 under rule 37 of the Federal Rules of Civil Pro4 cedure, only if the court finds that— 

5 (i) the requesting party needs the in6 formation sought to prove or defend as to 

7 a material issue contested in such action; 

8 and 

9 (ii) the likely benefits of a response to 

10 such request equal or exceed the burden or 

11 cost for the responding party of providing 

12 such response. 

13 (f) INTERLOCUTORY APPEAL AND STAY OF DIS14 COVERY.—The courts of appeals of the United States shall 

15 have jurisdiction of an appeal from a motion to dismiss 

16 that is denied in any coronavirus-related action in a dis17 trict court of the United States. The district court shall 

18 stay all discovery in such a coronavirus-related action until 

19 the court of appeals has disposed of the appeal. 

20 (g) CLASS ACTIONS AND MULTIDISTRICT LITIGA21 TION PROCEEDINGS.— 

22 (1) CLASS ACTIONS.—In any coronavirus-re23 lated action that is filed in or removed to a district 

24 court of the United States and is maintained as a 

25 class action or multidistrict litigation— 


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1 (A) an individual or entity shall only be a 

2 member of the class if the individual or entity 

3 affirmatively elects to be a member; and 

4 (B) the court, in addition to any other no5 tice required by applicable Federal or State law, 

6 shall direct notice of the action to each member 

7 of the class, which shall include— 

8 (i) a concise and clear description of 

9 the nature of the action; 

10 (ii) the jurisdiction where the case is 

11 pending; and 

12 (iii) the fee arrangements with class 

13 counsel, including— 

14 (I) the hourly fee being charged; 

15 or 

16 (II) if it is a contingency fee, the 

17 percentage of the final award which 

18 will be paid, including an estimate of 

19 the total amount that would be paid if 

20 the requested damages were to be 

21 granted; and 

22 (III) if the cost of the litigation 

23 is being financed, a description of the 

24 financing arrangement. 

25 (2) MULTIDISTRICT LITIGATIONS.— 


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1 (A) TRIAL PROHIBITION.—In any coordi2 nated or consolidated pretrial proceedings con3 ducted pursuant to section 1407(b) of title 28, 

4 United States Code, the judge or judges to 

5 whom coronavirus-related actions are assigned 

6 by the Judicial Panel on Multidistrict Litigation 

7 may not conduct a trial in a coronavirus-related 

8 action transferred to or directly filed in the pro9 ceedings unless all parties to that coronavirus10 related action consent. 

11 (B) REVIEW OF ORDERS.—The court of 

12 appeals of the United States having jurisdiction 

13 over the transferee district court shall permit 

14 an appeal to be taken from any order issued in 

15 the conduct of coordinated or consolidated pre16 trial proceedings conducted pursuant to section 

17 1407(b) of title 28, United States Code, if the 

18 order is applicable to 1 or more coronavirus-re19 lated actions and an immediate appeal from the 

20 order may materially advance the ultimate ter21 mination of 1 or more coronavirus-related ac22 tions in the proceedings. 

23 SEC. 164. DEMAND LETTERS; CAUSE OF ACTION. 

24 (a) CAUSE OF ACTION.—If any person transmits or 

25 causes another to transmit in any form and by any means 


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1 a demand for remuneration in exchange for settling, re2 leasing, waiving, or otherwise not pursuing a claim that 

3 is, or could be, brought as part of a coronavirus-related 

4 action, the party receiving such a demand shall have a 

5 cause of action for the recovery of damages occasioned by 

6 such demand and for declaratory judgment in accordance 

7 with chapter 151 of title 28, United States Code, if the 

8 claim for which the letter was transmitted was meritless. 

9 (b) DAMAGES.—Damages available under subsection 

10 (a) shall include— 

11 (1) compensatory damages including costs in12 curred in responding to the demand; and 

13 (2) punitive damages, if the court determines 

14 that the defendant had knowledge or was reckless 

15 with regard to the fact that the claim was meritless. 

16 (c) ATTORNEY’S FEES AND COSTS.—In an action 

17 commenced under subsection (a), if the plaintiff is a pre18 vailing party, the court shall, in addition to any judgment 

19 awarded to a plaintiff, allow a reasonable attorney’s fee 

20 to be paid by the defendant, and costs of the action. 

21 (d) JURISDICTION.—The district courts of the United 

22 States shall have concurrent original jurisdiction of all 

23 claims arising under subsection (a). 

24 (e) ENFORCEMENT BY THE ATTORNEY GENERAL.— 


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1 (1) IN GENERAL.—Whenever the Attorney Gen2 eral has reasonable cause to believe that any person 

3 or group of persons is engaged in a pattern or prac4 tice of transmitting demands for remuneration in ex5 change for settling, releasing, waiving, or otherwise 

6 not pursuing a claim that is, or could be, brought 

7 as part of a coronavirus-related action and that is 

8 meritless, the Attorney General may commence a 

9 civil action in any appropriate district court of the 

10 United States. 

11 (2) RELIEF.—In a civil action under paragraph 

12 (1), the court may, to vindicate the public interest, 

13 assess a civil penalty against the respondent in an 

14 amount not exceeding $50,000 per transmitted de15 mand for remuneration in exchange for settling, re16 leasing, waiving or otherwise not pursuing a claim 

17 that is meritless. 

18 (3) DISTRIBUTION OF CIVIL PENALTIES.—If 

19 the Attorney General obtains civil penalties in ac20 cordance with paragraph (2), the Attorney General 

21 shall distribute the proceeds equitably among those 

22 persons aggrieved by the respondent’s pattern or 

23 practice of transmitting demands for remuneration 

24 in exchange for settling, releasing, waiving or other25 wise not pursuing a claim that is meritless. 


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1 Subtitle D—Relation to Labor and 

2 Employment Laws 

3 SEC. 181. LIMITATION ON VIOLATIONS UNDER SPECIFIC 

4 LAWS. 

5 (a) IN GENERAL.— 

6 (1) DEFINITION.—In this subsection, the term 

7 ‘‘covered Federal employment law’’ means any of the 

8 following: 

9 (A) The Occupational Safety and Health 

10 Act of 1970 (29 U.S.C. 651 et seq.) (including 

11 any standard included in a State plan approved 

12 under section 18 of such Act (29 U.S.C. 667)). 

13 (B) The Fair Labor Standards Act of 

14 1938 (29 U.S.C. 201 et seq.). 

15 (C) The Age Discrimination in Employ16 ment Act of 1967 (29 U.S.C. 621 et seq.). 

17 (D) The Worker Adjustment and Retrain18 ing Notification Act (29 U.S.C. 2101 et seq.). 

19 (E) Title VII of the Civil Rights Act of 

20 1964 (42 U.S.C. 2000e et seq.). 

21 (F) Title II of the Genetic Information 

22 Nondiscrimination Act of 2008 (42 U.S.C. 

23 2000ff et seq.). 

24 (G) Title I of the Americans with Disabil25 ities Act of 1990 (42 U.S.C. 12111 et seq.). 


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1 (2) LIMITATION.—Notwithstanding any provi2 sion of a covered Federal employment law, in any 

3 action, proceeding, or investigation resulting from or 

4 related to an actual, alleged, feared, or potential for 

5 exposure to coronavirus, or a change in working con6 ditions caused by a law, rule, declaration, or order 

7 related to coronavirus, an employer shall not be sub8 ject to any enforcement proceeding or liability under 

9 any provision of a covered Federal employment law 

10 if the employer— 

11 (A) was relying on and generally following 

12 applicable government standards and guidance; 

13 (B) knew of the obligation under the rel14 evant provision; and 

15 (C) attempted to satisfy any such obliga16 tion by— 

17 (i) exploring options to comply with 

18 such obligations and with the applicable 

19 government standards and guidance (such 

20 as through the use of virtual training or 

21 remote communication strategies); 

22 (ii) implementing interim alternative 

23 protections or procedures; or 

24 (iii) following guidance issued by the 

25 relevant agency with jurisdiction with reVerDate Sep 11 2014 00:42 Jul 28, 2020 Jkt 099200 PO 00000 Frm 00056 Fmt 6652 Sfmt 6201 E:\BILLS\S4317.IS S4317

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1 spect to any exemptions from such obliga2 tion. 

3 (b) PUBLIC ACCOMMODATION LAWS.— 

4 (1) DEFINITIONS.—In this subsection— 

5 (A) the term ‘‘auxiliary aids and services’’ 

6 has the meaning given the term in section 4 of 

7 the Americans with Disabilities Act of 1990 (42 

8 U.S.C. 12103); 

9 (B) the term ‘‘covered public accommoda10 tion law’’ means— 

11 (i) title III of the Americans with Dis12 abilities Act of 1990 (42 U.S.C. 12181 et 

13 seq.); or 

14 (ii) title II of the Civil Rights Act of 

15 1964 (42 U.S.C. 2000a et seq.); 

16 (C) the term ‘‘place of public accommoda17 tion’’ means— 

18 (i) a place of public accommodation, 

19 as defined in section 201 of the Civil 

20 Rights Act of 1964 (42 U.S.C. 2000a); or 

21 (ii) a public accommodation, as de22 fined in section 301 of the Americans with 

23 Disabilities Act of 1990 (42 U.S.C. 

24 12181); and 


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1 (D) the term ‘‘public health emergency pe2 riod’’ means a period designated a public health 

3 emergency period by a Federal, State, or local 

4 government authority. 

5 (2) ACTIONS AND MEASURES DURING A PUBLIC

6 HEALTH EMERGENCY.— 

7 (A) IN GENERAL.—Notwithstanding any 

8 other provision of law or regulation, during any 

9 public health emergency period, no person who 

10 owns, leases (or leases to), or operates a place 

11 of public accommodation shall be liable under, 

12 or found in violation of, any covered public ac13 commodation law for any action or measure 

14 taken regarding coronavirus and that place of 

15 public accommodation, if such person— 

16 (i) has determined that the significant 

17 risk of substantial harm to public health or 

18 the health of employees cannot be reduced 

19 or eliminated by reasonably modifying poli20 cies, practices, or procedures, or the provi21 sion of an auxiliary aid or service; or 

22 (ii) has offered such a reasonable 

23 modification or auxiliary aid or service but 

24 such offer has been rejected by the indi25 vidual protected by the covered law. 


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1 (B) REQUIRED WAIVER PROHIBITED.—For 

2 purposes of this subsection, no person who 

3 owns, leases (or leases to), or operates a place 

4 of public accommodation shall be required to 

5 waive any measure, requirement, or rec6 ommendation that has been adopted in accord7 ance with a requirement or recommendation 

8 issued by the Federal Government or any State 

9 or local government with regard to coronavirus, 

10 in order to offer such a reasonable modification 

11 or auxiliary aids and services. 

12 SEC. 182. LIABILITY FOR CONDUCTING TESTING AT WORK13 PLACE. 

14 Notwithstanding any other provision of Federal, 

15 State, or local law, an employer, or other person who hires 

16 or contracts with other individuals to provide services, con17 ducting testing for coronavirus at the workplace shall not 

18 be liable for any action or personal injury directly result19 ing from such testing, except for those personal injuries 

20 caused by the gross negligence or intentional misconduct 

21 of the employer or other person. 

22 SEC. 183. JOINT EMPLOYMENT AND INDEPENDENT CON23 TRACTING. 

24 Notwithstanding any other provision of Federal or 

25 State law, including any covered Federal employment law 


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1 (as defined in section 181(a)), the Labor Management Re2 lations Act, 1947 (29 U.S.C. 141 et seq.), the Employ3 ment Retirement Income Security Act of 1974 (29 U.S.C. 

4 1001 et seq.), and the Family and Medical Leave Act of 

5 1993 (29 U.S.C. 2601 et seq.), it shall not constitute evi6 dence of a joint employment relationship or employment 

7 relationship for any employer to provide or require, for 

8 an employee of another employer or for an independent 

9 contractor, any of the following: 

10 (1) Coronavirus-related policies, procedures, or 

11 training. 

12 (2) Personal protective equipment or training 

13 for the use of such equipment. 

14 (3) Cleaning or disinfecting services or the 

15 means for such cleaning or disinfecting. 

16 (4) Workplace testing for coronavirus. 

17 (5) Temporary assistance due to coronavirus, 

18 including financial assistance or other health and 

19 safety benefits. 

20 SEC. 184. EXCLUSION OF CERTAIN NOTIFICATION RE21 QUIREMENTS AS A RESULT OF THE COVID–19 

22 PUBLIC HEALTH EMERGENCY. 

23 (a) DEFINITIONS.—Section 2(a) of the Worker Ad24 justment and Retraining Notification Act (29 U.S.C. 

25 2101(a)) is amended— 


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1 (1) in paragraph (2), by adding before the 

2 semicolon at the end the following: ‘‘and the shut3 down, if occurring during the covered period, is not 

4 a result of the COVID–19 national emergency’’; 

5 (2) in paragraph (3)— 

6 (A) in subparagraph (A), by striking 

7 ‘‘and’’ at the end; 

8 (B) in subparagraph (B), by adding ‘‘and’’ 

9 at the end; and 

10 (C) by adding at the end the following: 

11 ‘‘(C) if occurring during the covered pe12 riod, is not a result of the COVID–19 national 

13 emergency;’’; 

14 (3) in paragraph (7), by striking ‘‘and’’; 

15 (4) in paragraph (8), by striking the period at 

16 the end and inserting a semicolon; and 

17 (5) by adding at the end the following: 

18 ‘‘(9) the term ‘covered period’ means the period 

19 that— 

20 ‘‘(A) begins on January 1, 2020; and 

21 ‘‘(B) ends 90 days after the last date of 

22 the COVID–19 national emergency; and 

23 ‘‘(10) the term ‘COVID–19 national emergency’ 

24 means the national emergency declared by the Presi25 dent under the National Emergencies Act (50 


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•S 4317 IS

1 U.S.C. 1601 et seq.) with respect to the Coronavirus 

2 Disease 2019 (COVID–19).’’. 

3 (b) EXCLUSION FROM DEFINITION OF EMPLOYMENT

4 LOSS.—Section 2(b) of the Worker Adjustment and Re5 training Notification Act (29 U.S.C. 2101(b)) is amended 

6 by adding at the end the following: 

7 ‘‘(3) Notwithstanding subsection (a)(6), during 

8 the covered period an employee may not be consid9 ered to have experienced an employment loss if the 

10 termination, layoff exceeding 6 months, or reduction 

11 in hours of work of more than 50 percent during 

12 each month of any 6-month period involved is a re13 sult of the COVID–19 national emergency.’’. 

14 TITLE II—PRODUCTS 

15 SEC. 201. APPLICABILITY OF THE TARGETED LIABILITY 

16 PROTECTIONS FOR PANDEMIC AND EPI17 DEMIC PRODUCTS AND SECURITY COUNTER18 MEASURES WITH RESPECT TO COVID–19. 

19 (a) IN GENERAL.—Section 319F–3(i)(1) of the Pub20 lic Health Service Act (42 U.S.C. 247d–6d(i)(1)) is 

21 amended— 

22 (1) in subparagraph (C), by striking ‘‘; or’’ and 

23 inserting a semicolon; 

24 (2) in subparagraph (D), by striking the period 

25 and inserting ‘‘; or’’; and 


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1 (3) by adding at the end the following: 

2 ‘‘(E) a drug (as such term is defined in 

3 section 201(g)(1) of the Federal Food, Drug, 

4 and Cosmetic Act), biological product (including 

5 a vaccine) (as such term is defined in section 

6 351(i)), or device (as such term is defined in 

7 section 201(h) of the Federal Food, Drug, and 

8 Cosmetic Act) that— 

9 ‘‘(i) is the subject of a notice of use 

10 of enforcement discretion issued by the 

11 Secretary if such drug, biological product, 

12 or device is used— 

13 ‘‘(I) when such notice is in effect; 

14 ‘‘(II) within the scope of such no15 tice; and 

16 ‘‘(III) in compliance with other 

17 applicable requirements of the Federal 

18 Food, Drug, and Cosmetic Act that 

19 are not the subject of such notice; 

20 ‘‘(ii) in the case of a device, is exempt 

21 from the requirement under section 510(k) 

22 of the Federal Food, Drug, and Cosmetic 

23 Act; or 

24 ‘‘(iii) in the case of a drug— 


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1 ‘‘(I) meets the requirements for 

2 marketing under a final administra3 tive order under section 505G of the 

4 Federal Food, Drug, and Cosmetic 

5 Act; or 

6 ‘‘(II) is marketed in accordance 

7 with section 505G(a)(3) of such Act.’’. 

8 (b) CLARIFYING MEANS OF DISTRIBUTION.—Section 

9 319F–3(a)(5) of the Public Health Service Act (42 U.S.C. 

10 247d–6d(a)(5)) is amended by inserting ‘‘by, or in part11 nership with, Federal, State, or local public health officials 

12 or the private sector’’ after ‘‘distribution’’ the first place 

13 it appears. 

14 (c) NO CHANGE TO ADMINISTRATIVE PROCEDURE

15 ACT APPLICATION TO ENFORCEMENT DISCRETION EXER16 CISE.—Section 319F–3 of the Public Health Service Act 

17 (42 U.S.C. 247d–6d) is amended by adding at the end 

18 the following: 

19 ‘‘(j) RULE OF CONSTRUCTION.—Nothing in this sec20 tion shall be construed— 

21 ‘‘(1) to require use of procedures described in 

22 section 553 of title 5, United States Code, for a no23 tice of use of enforcement discretion for which such 

24 procedures are not otherwise required; or 


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1 ‘‘(2) to affect whether such notice constitutes 

2 final agency action within the meaning of section 

3 704 of title 5, United States Code.’’. 

4 TITLE III—GENERAL 

5 PROVISIONS 

6 SEC. 301. SEVERABILITY. 

7 If any provision of this Act, an amendment made by 

8 this Act, or the application of such a provision or amend9 ment to any person or circumstance is held to be unconsti10 tutional, the remaining provisions of and amendments 

11 made by this Act, as well as the application of such provi12 sion or amendment to any person other than the parties 

13 to the action holding the provision or amendment to be 

14 unconstitutional, or to any circumstances other than those 

15 presented in such action, shall not be affected thereby. 

Æ 


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