The House and Senate are briskly advancing a bill that would protect businesses, schools and other institutions from coronavirus-related litigation.

Both chambers’ judiciary committees on Tuesday advanced the proposal, drafted with the help of the Tennessee Chamber of Commerce and Industry and other business groups, though a key difference between the two remains.

The Senate version would have the protections reach back to March, while the House version would, as currently drafted, only protect the organizations once the law is enacted.

“What is the point of the bill if it only starts going forward?” asked Nicole Watson, a Waller attorney representing the business groups in the Senate hearing on Tuesday.

But Mark Chalos, a Nashville attorney and vice president of the Tennessee Trial Lawyers Association, argued that a retroactive law would violate the state constitution, which states that “no retrospective law … shall be made.”

The Tennessee Attorney General’s Office analyzed the applicability of a related constitutional provision at length earlier this year, finding that “to take on constitutional dimensions, the statute must relate back to an antecedent transaction and give that transaction some different legal effect from that which it had under the law when the transaction occurred.”

That’s exactly what Chalos argued the Senate version of the bill would do: take away litigation rights from people who currently have them for harm already done.

Though the House and Senate for now disagree on whether the bill should be retroactive, they largely agree on the nature of the protections, which would insulate businesses and organizations from coronavirus-related actions unless their behavior constitutes “gross negligence.”

“Bad actors should be held accountable,” said Senate Judiciary Chair Mike Bell, echoing the stated claims of other Republicans and business representatives in earlier debates.

The protections do not apply to worker claims, though pro-worker groups including the Tennessee Immigrant and Refugee Rights Coalition are advocating for further pandemic-related protections for employees.

The two bills are likely headed for full votes in the House and Senate, respectively, and could require a conference committee to hash out the differences.

This post originally appeared in our sister publication, the Nashville Post

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