Health-care providers, frontline responders, manufacturers, distributors, and others involved in the fight against COVID-19 should be comforted by the legal protections afforded by the Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. §247d-6d. A review of the PREP Act and related Amendments illustrates the expanding shield the PREP Act can provide against COVID-19 related litigation. While the U.S. Department of Health and Human Services (HHS) continues to expand coverage of the PREP Act’s broad-based, retroactive immunity, the case law is in its infancy and is at times inconsistent, highlighting the importance for “covered persons” to keep abreast of future developments.

The PREP Act and COVID-19

Enacted on Dec. 30, 2005, the PREP Act empowers the Secretary of HHS to issue a PREP Act Declaration that “a disease or other health condition … constitutes a public health emergency.” The PREP Act provides certain individuals and entities (“covered persons”) broad immunity for specific recommended activities, namely, “the manufacture, testing, development, distribution, administration, or use of one or more covered countermeasures.” This immunity encompasses claims under both federal and state law for actions based in doctrines ranging from tort to contract losses.