Texas Legislature Passes Several Bills Impacting Texas Employees

We recently published an update pertaining to recent Texas court decisions, available here. This week’s blog reviews recent Texas legislative actions affecting employment law.

In addition to the new sexual harassment protections that we wrote about here, the Texas Legislature has passed other employment legislation in its most recent regular session and two-specially called legislative sessions. 

Statutory Liability Protection for Texas Businesses

Texas is one of 19 states that have passed statutory liability protections for businesses against claims arising from the COVID-19 pandemic Authored by Sen. Kelly Hancock, the Pandemic Liability Protection Act (PLPA) was passed by both chambers by supermajorities and went into effect on June 14, 2021. The PLPA grants retroactive liability protection for small and large businesses for claims commenced on or after March 13, 2020. It does not however, provide businesses an absolute immunity shield. Although high thresholds, claims can still be brought for a pandemic-related injury or death if the business:

1. Knowingly failed to warn of, or to fix, a condition it knew was likely to result in exposure, and the failure to warn or fix was the cause in fact of the exposure; or
2. Knowingly failed or refused to comply with government standards, guidance, or protocols that are intended to lower the likelihood of exposure to COVID-19, and the failure or refusal to comply was the cause in fact of the exposure.

Merely asserting that a defendant knew of and failed to warn of a condition that was likely to result in the exposure to COVID-19 and knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols is insufficient to establish a claim. Instead, the plaintiff must provide reliable scientific evidence that shows the defendant’s failure to warn of the condition or failure to comply was the cause in fact of the individual contracting the disease.
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The PLPA’s liability shield will continue to protect businesses until Governor Abbott terminates the current COVID-19 pandemic disaster declaration. Notably, the law does not create a private cause of action. 

Additional Permitted Medical Use for Low-THC Cannabis

While recreational marijuana is still prohibited in Texas, earlier this year, Governor Abbott signed into law HB 1535, which went into effect September 1, 2021. The new law doubles the permissible amount of THC in low-THC cannabis, from 0.5% to 1%. It also adds cancer, chronic pain, and post-traumatic stress disorder to the permissible list of medical conditions for which low-THC cannabis may be prescribed.
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This new law significantly expands the number of people potentially eligible for a prescription, as the previous law only permitted prescriptions for epilepsy, a seizure disorder, multiple sclerosis, spasticity, sclerosis, autism, and terminal cancer. The new law also permits a prescription of low-THC cannabis in an approved research program.

Under the terms of the bill, one or more compassionate-use institutional review boards would be established to evaluate and approve proposed research programs that would study the medical use of low-THC cannabis in treating specific medical conditions. The boards would also oversee patient treatment that was undertaken as part of an approved research program, including the certification of treating physicians.

The law instructs the relevant state agencies to issue rules and guidance by December 1, 2021. Although the new law does not contain any employee protections for use of cannabis, employees may request accommodations for permission to use low-THC cannabis for medical purposes.

Expanded Protections for Employees Called to State Military Duty

​SB 484 went into effect on September 1, 2021 and provides enhanced employment protections for active service members. Texas employees who are called to active duty or training with state military forces have long been protected from termination and had certain reinstatement rights after returning from duty or training, but an aggrieved individual previously could only file a complaint with the Texas Workforce Commission. The new law gives employees the right to hire a lawyer and file a civil lawsuit in state court, and further permits recovery of damages, costs, and attorneys’ fees.

New Firearm Carry Act Allows Carrying of Handguns Without a Permit

​Governor Abbott also signed into law the Firearm Carry Act of 2021, HB 1927 (FCA), which went into effect on September 1, 2021. The FCA generally permits most Texans age 21 and over to carry holstered handguns without training or a license-to-carry permit if they are not otherwise prohibited from doing so by state or federal law. The new law does not prevent or otherwise limit the right of a public or private employer to prohibit persons from carrying a handgun on the premises of the business, but most employers cannot prevent employees from keeping a firearm in their locked vehicles in a parking lot. 

Paid Sick Leave Still Not Required

Several bills were introduced during the regular legislative session to require private employers to provide employees with paid sick leave and they all failed. Cities have attempted to pass laws requiring sick leave, but they have similarly been thwarted. The City of Dallas passed a paid sick leave ordinance on August 1, 2019 for employers with six or more employees, but the Eastern District of Texas struck it down as preempted by the Texas Minimum Wage Act and in violation of the Texas Constitution.
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There is therefore still no state or local law that requires Texas employers to provide paid sick leave.