Yesterday, the Tennessee Senate and House each passed the Tennessee COVID-19 Recovery Act (Act), which now heads to Gov. Lee’s desk for signature. The Act provides Tennessee businesses, nonprofit organizations, schools, health care providers, and other individuals and entities with significant protections against claims related to COVID-19. In passing the Act, Tennessee joins Georgia and several other states that have enacted similar liability protections.

The Act applies to claims alleging that injury, damage, or death was “caused by or resulting from the actual, alleged, or possible exposure to or contraction of COVID-19, or caused by or resulting from services, treatment, or other actions in response to COVID-19.” And, it provides the following important procedural protections:

• The liability standard is now gross negligence (i.e., reckless disregard) or willful misconduct (i.e., an intentional action).
• A plaintiff is required to prove the claim by “clear and convincing evidence,” which is higher than the typical civil standard of proof by a preponderance of the evidence (but not as high as the criminal standard “beyond a reasonable doubt”).
• To pursue a claim, a plaintiff must file a verified complaint—one in which the plaintiff verifies, under oath, the accuracy and truthfulness of the specifically pleaded facts. The plaintiff must also file with the verified complaint a certificate of good faith confirming that the plaintiff (or the plaintiff’s attorney) has consulted with a physician, and the physician has provided a written statement indicating that the plaintiff’s loss, damage, injury, or death was caused by an act or omission of the defendant.

The Act further clarifies that it:

• Does not create a cause of action that otherwise doesn’t already exist
• Does not apply to workers’ compensation claims, which remain employees’ exclusive remedy for alleged workplace injuries, including those related to COVID-19

The Act is welcome news for Tennessee businesses and organizations who have continued operations or reopened amid shifting and sometimes conflicting federal and state public health guidance. It should allow for the continuation of safe operations without the fear of financially crippling litigation.

Our Chambliss team continues to monitor legal developments in connection with the COVID-19 pandemic.